COURT SENTENCING PATTERNS
J. Bryan Kinney Master of Arts, Simon Fraser University 1999 Bachelor of Arts, University of British Columbia 1995
DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
In the School of Criminology
O J. Bryan Kinney 2005 SIMON FRASER UNIVERSITY Fa11 2005
All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without permission of the author. APPROVAL
Name: James Bryan Kinney
Degree: Ph.D.
Title of Thesis: Court Sentencing Patterns
Examining Committee:
Chair: Paul J. Brantingham, J.D.
Patricia L. Brantingham, Ph.D. Senior Supervisor Professor, School of Criminology
Neil Boyd, LL.M. Supervisor Professor, School of Criminology
Brian Burtch, Ph.D. Supervisor Professor, School of Criminology
David MacAlister, LL.M. Internal Examiner Assistant Professor, School of Criminology
Marcus Felson, Ph.D. External Examiner Professor, School of Criminal Justice Rutgers University
Date Defended: SIMON FRASER UNIVERSITY~ ibra ry
DECLARATION OF PARTIAL COPYRIGHT LICENCE
The author, whose copyright is declared on the title page of this work, has granted to Simon Fraser University the right to lend this thesis, project or extended essay to users of the Simon Fraser University Library, and to make partial or single copies only for such users or in response to a request from the library of any other university, or other educational institution, on its own behalf or for one of its users.
The author has further granted permission to Simon Fraser University to keep or make a digital copy for use in its circulating collection, and, without changing the content, to translate the thesislproject or extended essays, if technically possible, to any medium or format for the purpose of preservation of the digital work.
The author has further agreed that permission for multiple copying of this work for scholarly purposes may be granted by either the author or the Dean of Graduate Studies.
It is understood that copying or publication of this work for financial gain shall not be allowed without the author's written permission.
Permission for public performance, or limited permission for private scholarly use, of any multimedia materials forming part of this work, may have been granted by the author. This information may be found on the separately catalogued multimedia material and in the signed Partial Copyright Licence.
The original Partial Copyright Licence attesting to these terms, and signed by this author, may be found in the original bound copy of this work, retained in the Simon Fraser University Archive.
Simon Fraser University Library Burnaby, BC, Canada STATEMENT OF ETHICS APPROVAL
The author, whose name appears on the title page of this work, has obtained, for the research described in this work, either:
(a) Human research ethics approval from the Simon Fraser University Office of Research Ethics,
(b) Advance approval of the animal care protocol from the University Animal Care Committee of Simon Fraser University; or has conducted the research
(c) as a co-investigator, in a research project approved in advance,
(d) as a member of a course approved in advance for minimal risk human research, by the Office of Research Ethics.
A copy of the approval letter has been filed at the Theses Office of the University Library at the time of submission of this thesis or project.
The original application for approval and letter of approval are filed with the relevant offices. Inquiries may be directed to those authorities.
Simon Fraser University Library Burnaby, BC, Canada ABSTRACT
Unwarranted variation in sentencing brings the justice system into disrepute and has the potential for impeding fairness in sentencing policy and practice. This dissertation examines both general and specific trends regarding Adult Criminal Court (ACC) sentencing patterns for a mixture of eight urban and rural jurisdictions in British Columbia for a two-year period, June 1, 2001 through May 31, 2003. From this empirical baseline, it will be possible to examine the extent to which unwarranted sentencing disparity exists for the study regions. While the study examines disposition for a number of charge types, Controlled Drugs and Substances Act offences are given particular attention. This study considers sentence outcomes on two levels: (I) total counts of all possible sentencing categories; and (2) the single most serious sentence derived from the single most serious charge. Each jurisdiction in the study area is examined for disparity in charge rates and sentencing quanta. This study finds wide variation in the relative mix of charges appearing before courts for the eight regions, and as well, substantial variation the severity of any sanctions imposed. The implications of this variation are discussed. KEYWORDS: Court sentencing-adult criminal- British Columbia-Canada; Controlled drugs and substances (CDSA); Method- quantitative-data analysis; sentencing patterns DEDICATION
I dedicate this work to my wife, Aili Malm. I am indeed fortunate to be able to share the mind and spirit of this amazing woman. She has quite literally saved my life, but even without this, I would still owe her mine for the love and support she has given me. ACKNOWLEDGEMENTS
As is typical of budding scholars, I owe a great deal to a great many people, but none more so than Professors Patricia and Paul Brantingham. I am proud to have been their student. What academic success I may have in the future is entirely because of their mentorship. I also have had the pleasure of working with a number of others from the School of Criminology. Professor Brian
Burtch, a humanist to the core, is a constant source of inspiration for living life in and outside the academy. Professors Neil Boyd and Gail Anderson have been a pleasure with which to work, and have been unduly supportive of me throughout my studies. Indeed, the entire staff and faculty have been a most supportive and enjoyable group with which to work. I am also grateful to Professors Marcus
Felson and David Macalister for their efforts as external examiners.
I would also like to acknowledge just a few of those individuals from outside the "real world" that made this research possible. Ms. lsobel Donovan
(Vancouver Agreement Coordination Unit), Mr. Donald MacPherson (City of
Vancouver Drug Policy Coordinator), and Mr. Nathan Edelson (Senior Planner,
City of Vancouver), provided me with the inspiration to bring my research directly to the community. Mr. Robert Prior (Director, Federal Prosecutions) and Dan
Chiddell (Court Services Branch) both saved me from many pitfalls in researching court records. In spite of all this assistance, mentorship and support, what errors remain are mine alone. TABLE OF CONTENTS .. Approval ...... 11 ... Abstract ...... 111 Dedication...... iv Acknowledgements ...... v Table of Contents ...... vi List of Tables ...... ix List of Figures ...... xi ... Equations...... XIII ... Table of Cases ...... XIII ... Abbreviations ...... XIII 1 Determined first steps-Systematic indeterminacy in sentencing practice...... I 1.I Supreme and Provincial Court sentencing patterns for selected jurisdictions in British Columbia: June 1, 2001 through May 31, 2003 ...... I 2 Philosophy of law ...... 15 2.1 Why a philosophy of law? ...... 15 2.2 Natural Law ...... 17 2.3 Legal Positivism (Positivist Law) ...... 22 2.4 Legal Realism (Realist Law) ...... 25 2.5 Critical Legal Studies (CLS) ...... 30 3 Chapter 3: Sentencing research in the Canadian historical context ...... 37 3.1 History of sentencing in Canada-European influences ...... 38 3.1 .I Sentencing principles after the Criminal Code (1892) ...... 45 3.1.2 Key developments in Canadian courts since 1892 ...... 48 3.2 Sentencing in Canada: A Review of current research ...... 50 3.2.1 The Law Reform Commission and Sentencing Commissions (1974-1 988)...... 60 3.2.2 Principles of sentencing & the new Code ...... 74 3.3 Sentencing disparity in a Canadian context: Empirical evidence ...... -82 4 Methodology ...... 91 4.1 Macro-Level methodology: Working with administrative court records ...... -95 4.1 .1 Adult Criminal Court data ...... 96 4.1.2 Study parameters and selection criteria ...... 99 4.1.3 Limitations and strengths of the JUSTIN extract ...... 104 4.1.4 Aggregate data analysis procedures: Charge quotients ...... 107 5 Adult Criminal Court Records Analysis ...... I I I Introduction ...... II Working with JUSTIN extract data ...... 113 Descriptive statistics (eight jurisdictions, study period) ...... 117 Age and sex of accused for study area ...... 117 Charge mix for complete data extract ...... 118 Median sanctions for general UCR categories by jurisdiction ...... 124 Regional data ...... 133 Charges and sanctions imposed: Top 10 accused ...... 136 Detail: Tracking the most frequently charged person ...... 139 Regional sanctions for CDS offences ...... 142 Total sanctions ...... 144 Charge quotients by jurisdiction ...... 150 Focus on Vancouver ...... 157 General sentencing outcomes ...... 160 Prison terms ...... 161 Probation ...... 164 Conditional sentences, fines and restitution ...... 164 Selected charge categories, Vancouver (Jun 01 - Jun 03) ...... 165 General UCR & drug-related offences by disposition category ...... 167 Provincial comparisons (2002) ...... 170 Sentencing patterns by specific charge ...... 176 Possession of a controlled substance (Jun 01- Jun 03) ...... 178 Possession of a controlled substance by Most Serious Sentence (Vancouver & Provinces, 2002) ...... 179 Production of a controlled substance (Jun 01- Jun 03)...... 182 Trafficking in a controlled substance (Jun 01- Jun 03) ...... 183 Trafficking in a controlled substance by Most Serious Sentence (Vancouver & Provinces, 2002) ...... 184 Selected charge rates ...... 185 6 Looking for Tigers in the Trees ...... 189 6.1 Overview of research objectives ...... 189 viii
Discussion of key findings ...... 194 Recommendations for future research ...... 197 Appendices ...... 202 Appendix A-Case characteristics standard file layout ...... 203 References ...... 204 LIST OF TABLES
Table 4.1 General Data Elements for JUSTIN Extract ...... 98 Table 5.1 Age of Offender for each Completed Disposition by Jurisdiction. Jun 01 .Jun 03 ...... 117 Table 5.2 Original JUSTIN Extract and Total Valid Records (N=88.065) ...... 118 Table 5.3 Missing UCR Data. by Disposition ...... 120 Table 5.4 Missing UCR Data. by Appearance ...... 121 Table 5.5 Top UCR Charges. Study Area. Jun 01-Jun 03 ...... 122 Table 5.6 Charges by Jurisdiction. Jun-01 -Jun 03 ...... 123 Table 5.7 Median Sentence. by UCR. by Jurisdiction. Jun 01 - Jun 03 ...... 127 Table 5.8 Median Scores. UCR by Jurisdiction. Jun 01-Jun 03 ...... 129 Table 5.9 Count of Prison Sentences by Specific UCR Charge. by Jurisdiction. Jun 01 .Jun 03 ...... 133 Table 5.1 0 Crosstabulation. Main UCR Charges by Region. Jun 01-Jun 03 ...... 134 Table 5.1 1 Median Scores. UCR by Regions. Jun-01-Jun-03 ...... 135 Table 5.1 2 Reading the Total (Complete) Sentence Variable ...... 140 Table 5.1 3 Descriptive Statistics for CDS Offences by Geographic Region. Jun 01 - Jun 03 ...... 143 Table 5.14 Sentence Rollup by Region. All Charges. Jun 01 - Jun 03 ...... 145 Table 5.1 5 Sentence Rollup by Region. Drug-Related Charges. Jun 01 - Jun 03 ...... 148 Table 5.1 6 Dispositions for Vancouver. Jun 01 - Jun 03 ...... 157 Table 5.1 7 Appearances by Disposition. Vancouver. Jun 01 - Jun 03 ...... 158 Table 5.1 8 Vancouver Dispositions for each time period ...... 159 Table 5.1 9 Sentence Terms (2 Year Descriptive Statistics) ...... 161 Table 5.20 Vancouver Sanctions. by Percentile Scores. Jun 01 - Jun 03 ...... 161 Table 5.21 One Day Jail Terms. by UCR Level 2. Vancouver. Jun 01 - Jun 03 ...... 163 Table 5.22 One Day Jail Terms. by UCR Detail. Vancouver. Jun 01 - Jun 03 ...... 164 Table 5.23 General UCR Charge Categories. Vancouver. Jun 01 - Jun 03 ...... 165 Table 5.24 Federal Drug Offences in Vancouver. Jun 01 - Jun 03 ...... 166 Table 5.25 General (Level 1) UCR Categories by Disposition. Vancouver. Jun 01 .Jun 03 ...... 169 Table 5.26 Drug-related Charges by Disposition, Vancouver. Jun 01 .Jun 03 ...... 169 Table 5.27 Possession for the purpose of trafficking in a CDS (Statistical Summary) ...... 177 Table 5.28 Possession of CDS (Statistical Summary for Vancouver. June 2001-May 2003) ...... 178 Table 5.29 Possession Convictions, Selected Regions, 2002 ...... 179 Table 5.30 Production of CDS (Statistical Summary) ...... 183 Table 5.31 Trafficking in CDS (Statistical Summary) ...... 184 Table 5.32 Selected Charge Rates by Province. per 100K Adults. 2002 ...... 188 LIST OF FIGURES
Figure 1 Eight Jurisdictions and Basic Demographic Data ...... 4 Figure 2 Macro Data (JUSTIN) Flow Model ...... I01 Figure 3 Total Dispositions, by Jurisdiction. Jun 01-Jun 03 ...... 120 Figure 4 Cross tabulation. Top 10 Accused by Plea. Jun 01-Jun 03 ...... 138 Figure 5 Tracking the Most Frequently Accused. Detailed Analysis ...... 141 Figure 6 UCR C.C. Driving Charge Quotients by Region. Jun 01 .Jun 03 ...... 150 Figure 7 UCR (Federal Drug) Charge Quotients by Region. Jun 01 - Jun 03 ...... 151 Figure 8 UCR (Other) Charge Quotient by Jurisdiction. Jun 01 .Jun 03 .....152 Figure 9 UCR (Other Federal) Charge Quotient by Jurisdiction. Jun 01 .Jun 03 ...... 152 Figure 10 UCR (Property) Charge Quotient by Jurisdiction. Jun 01 .Jun 03 ...... 153 Figure 11 UCR (Violent) Charge Quotient by Jurisdiction. Jun 01 .Jun 03 ...... 154 Figure 12 UCR Charge Quotients, by Jurisdiction, Jun 01 - Jun 03 ...... 155 Figure 13 UCR Charge Quotients. by Jurisdiction (continued) ...... 156 Figure 14 Disposition Rate (#Dispositions/ #months per period) ...... 160 Figure 15 Charge Rate. Total Drugs. Selected Provinces ...... 171 Figure 16 Charge Rates for Cannabis. Selected Provinces ...... 172 Figure 17 Selected Drug Charge Rates. 1992-2002 ...... 173 Figure 18 Charge Rates for Cocaine. Selected Provinces ...... 173 Figure 19 Charge Rates for Heroin. Selected Provinces ...... 174 Figure 20 2001 Drug Conviction Rates (Selected Provinces) ...... 175 Figure 21 2002 Drug Conviction Rates (Selected Provinces) ...... 176 Figure 22 Possession Sentences by Type, 2002 ...... 180 Figure 23 Possession Offence Rates. British Columbia ...... 181 xii
Figure 24 Possession of Cannabis Charge Rates for Selected Provinces..... 182 Figure 25 Trafficking Sentences by Type. 2002 ...... 184 Figure 26 Charge Rates for Trafficking Cannabis. Selected Provinces ...... 185 Figure 27 Charge Rates for Property Crime. Selected Provinces ...... 186 Figure 28 Charge Rates for Violent Crime. Selected Provinces ...... 187 xiii
EQUATIONS
Equation 1 Location Quotient for Crime (LCQ) ...... I08
TABLE OF CASES
R. v. Fallofield (1973), 22 CRNS 342 (BCCA)
R. v. Willaert (1953), 105 CCC 172 (OntCA)
ABBREVIATIONS
ACC Adult Criminal Court ACCS Adult Criminal Court Survey BC British Columbia B.N.A. (Act) British North America (Act) C. C. C. (or C. C.) Criminal Code (of Canada) C. D. S.A. Controlled Drugs and Substances Act CLS Critical Legal Studies CCJS Canadian Centre for Justice Statistics CSB Court Services Branch CLQ Charge Location Quotient EDA Exploratory Data Analysis LCQ Location of Crime Quotient MSS Most Serious Sanction (Sentence) TS Total Sentence UCR Uniform Crime Report VACU Vancouver Agreement Coordination Unit I DETERMINED FIRST STEPSSYSTEMATIC INDETERMINACY IN SENTENCING PRACTICE
1.I Supreme and Provincial Court sentencing patterns for selected jurisdictions in British Columbia: June 1,2001 through May 31,2003
"Even if the relevant factors [regarding sentencing policy and practice] are agreed upon and the priority that they are to be given is clear, the problem is not solved or avoided. If it were decided that a person's role in an offence, or the amount of premeditation, or the offenders' criminal record were to be relevant, two judges could easily assess these in different ways. At this point, however, disparity due to differential assessments of similar 'facts' is less immediate a problem than the lack of consensus of what should be assessed in the first place. If the more basic problem were solved, it would make sense to turn to this second level of concern" (Canadian Sentencing Commission, 1987: 72).
The primary goal of this dissertation is to establish a comprehensive, empirical picture of sentencing patterns in Adult Criminal Courts for selected jurisdictions in British Columbia (BC). Research on sentencing policy and practice tends to cluster around efforts extolling either the virtues of a strict, determined sentencing philosophy, or a more, adaptable (and ostensibly more humane), individualistic approach where sentences are tailored to the circumstances of the case. At a general level, this polarization can be found in two of Canada's more influential treatments of sentencing, Nadin-Davis (1982) who presents the tariff approach, and Ruby (1980) for the individual perspective.
The former considers best sentencing practice to be within a given set of boundaries. Matrix-, or schedule-, based sentencing are other varieties of the tariff system. The tariff model seeks uniformity in the aggregate or long run. The 2 latter approach focuses entirely on the individual; what is best for the system at large is the accumulation of individual experiences of justice-regardless of whether or not commentators can point to examples of indeterminacy.
In the opening quotation, the Sentencing Commission suggests that there are two separate considerations that one must make before the work of assembling a practical sentencing policy, and further, that one question is logically prior to the second. The first, essential, question is whether or not sentencing principles are being met, and only then can one begin to consider to what degree the facts of the case are handled in more or less appropriate ways within the established principles. If (in)determinacy is to be understood more completely, one must be able to identify if specific dispositions, or sentences, are consistent with the principles of sentencing set out in the Criminal Code. As the heading for this chapter suggests, it is argued here that it is possible for a systematic philosophy that accepts the reality of disparity (or indeterminacy) in a case-to-case basis, while still arguing for some consistency in sentencing principles. While a range of philosophical approaches are outlined in the next chapter, the primary theory adopted in guiding the analysis in this study is firmly within a pragmatic, legal realism. With its empirical focus, this research looks for evidence of aggregate sentencing patterns to determine to what extent, if any, sentences are disparate, across different jurisdictions.
This research is primarily an empirical inquiry into the nature and distribution of completed decisions, culled ,from the Justice Information System
(JUSTIN) database, which is maintained by the Court Services Branch (CSB) 3
under the authority of the province's Ministry of Attorney ~eneral.' This research
provides a systematic, evidence-based discussion of sentencing patterns for the
included jurisdictions, and a consideration of how these specific locations are in
step, or out of step, with other locations and other Canadian provinces.
The main source of data for this study is all completed adult criminal court
decisions for eight separate jurisdictions within BC for a two-year span beginning
June lSt,2001 and ending May 31St,2003. The total data include nearly 90,000
Supreme and Provincial court records for which a formal decision was given.
The eight court locations see (Figure 1, below) were selected purposively to
include larger and smaller municipalities from each of the four regions served by
the Court Services Branch (CSB): Vancouver Island (Victoria and Campbell
River), the Lower Mainland (Vancouver and Abbotsford), the North (Prince
George and Prince Rupert), and the Interior (Kelowna and Salmon Arm). While
the focus of the research includes an assessment of the degree of similarity
observed among these jurisdictions, it is also important to consider such patterns
(regardless of their similarity or dissimilarity) against the wider context of
provincial and federal patterns.
1 An informative and readable introduction to the history and purpose of the integrated justice database can be found at the Ministry of the Attorney General's JUSTIN webpage (Ministry of the Attorney General) Figure I Eight Jurisdictions and Basic Demographic Data
At the beginning, it was expected that regional differences (at the social, political, economic and geographic levels, for example) would be such that it would be unlikely for one to find a uniform pattern in the sentencing data across the eight jurisdictions within BC, let alone across provinces.
One reason for this lack of uniformity is that while Canada has a federal
Criminal code2,the formal administration of justice is essentially a provincial matter. This important development in the history of the Canadian criminal justice system will be revisited in Chapter 2, but the point here is that criminal offences can be heard at Provincial or Supreme courts3. Variation is also expected in the total number (incidence) of certain types of charges appearing before the Provincial and Supreme Courts at each of the eight study locations. It is hypothesized that the observed variations in the relative mix of cases before each jurisdiction have an impact on both the distribution of court decisions and the quanta and form of sentences meted out for those found guilty. Put plainly, the mix of different kinds of charges appearing before Provincial and Supreme courts in Vancouver-Western Canada's largest urban centre-is likely to differ from those seen in smaller jurisdictions in more rural environs such as Prince
Rupert or Campbell River.
While the substantive issue at hand is to compare and contrast both the kinds of cases before the Provincial and Supreme courts in each jurisdiction and
The Criminal Code of Canada is referred to here and elsewhere in this dissertation as C.C. or C.C.C. or the Code. The Code or its abbreviations are used here to mean the most current edition, unless otherwise stated. The Federal Court is not coterminous with the Supreme Court; the former considers mainly cases involving legal disputes with the government, and or its federal regulations. Supreme Courts are the superior trial courts for each province, hearing both civil and criminal cases and some appeals from its Provincial Court. The highest provincial court is the Court of Appeal, with the Supreme Court of Canada as the overarching, final authority. For a brief overview of the court system, and its original authority stemming from the Constitution Act (1867)-formerly known as the British North America (BNA) Act of 1867 (Supreme Court of Canada, 2005). 6
the formal sentencing outcomes stemming from each, the sheer variety of
Criminal Code and Controlled Drugs and Substances Act (hereafter C. D.S.A.)
offences precludes an exhaustive discussion of all available charges for which
there are data. In the interests of economy, and for comparability with the extant
Canadian sentencing literature, a more aggregate, or "rolled up" class of charges
is discussed. The primary classification scheme used here is the familiar
Uniform Crime Reports (UCR) classification. At its most general level, the UCR
resolves charges into categories such as: driving offences, federal drugs, and
crimes against property and violence. Across Canada, and especially in BC,
there appears to be an elevated focus on controlled drugs and so-called related
offences in both lay (The Economist, November 20, 2004) and professional
(Hathaway, 2004; Plecas, Malm, & Kinney, 2005) circles alike. Partly as an effort to bring an evidence-based discussion to bear on the nature and distribution of
drugs charges at the adult criminal court level in BC, special consideration is given to sentencing outcomes for three general UCR categories: drugs, property, and violence.
The opportunity to work with court records compliments the author's ongoing research into the nature of crimes known to the police. Such efforts concentrate on patterns in crime for particular geographic regions, whether they are they entire cities, or some other larger scale categorization, such as a census neighbourhood, police district or patrol area. Court records provide the other side of the criminal justice system. To understand something of the way crime is handled at the court level can only help one to better understand the work of the
police, and vice versa..
Another inspiration for undertaking an extended study of sentencing in various jurisdictions in BC springs from the author's work with the Vancouver
Agreement Coordination Unit (VACU) which is keen to identify current sentencing trends in Vancouver and then consider the local picture in relation to other jurisdictions in BC. The author chose the remaining jurisdictions to help provide an approximation of a regional context from which to undertake the inter- jurisdictional comparisons. A pivotal research question posed by the VACU is:
"Are adults in Vancouver criminal courts sentenced for drug, violence, or property offences differently than can other jurisdictions in the province?" This seemingly straightforward question requires several assumptions and a clearly-delineated, transparent research plan. The importance of regional contexts forms a key aspect of this analysis, and serves to provide the backdrop for the pragmatic, legal realist approach that characterizes this research.
It is simple enough, it would seem, to obtain the most recent and relevant court records, analyze these for prominent trends, and to confirm or contest the current set of understandings about what adult criminal court sentences "look like", and to report these in an unbiased manner. Yet there are a number of problems with such a plan, and a good deal of what follows is devoted to their resolution, and equally important, what may be gained in traversing these issues.
The position advanced here is that there is practical benefit from taking time to explore the formal outputs of the sentencing process, and that such efforts are important for those working for, with, or even against the system. While specific
problems will find more complete discussion in subsequent chapters, at this early
stage it is important that a few words be said about the author's philosophical
and methodological preferences for doing research in such matters. In brief,
these preferences take three general forms.
First, it is assumed that there is in fact a direct measure, or indicator, of
what the courts actually do. This seems an odd statement, but there is a
substantial literature in Canada and elsewhere indicating that what the courts do
is rather unlike what is recorded in official records. The author's ontological and
epistemological preferences were key in the choice of what data would best
answer the "What do courts do?" question. The single most systematic record of
the daily work of the adult criminal courts is contained in JUSTIN. As an administrative court records database, it records both ongoing or preliminary
hearings and final dispositions for each charge heard in court for the entire
province. At first blush, the approach taken here puts this research firmly within a realist epistemology-something along the lines of the American Legal Realists of the early to mid-twentieth century. However, while a devout realist in the sense that there are material data available to answer questions about the patterning of sentences for various jurisdictions, and further that these data are worthy of gathering and analyzing for aggregate trends, the author hopes to take into account at least some of what is cast as critical legal studies, which, although as an approach is diverse, and certainly not of one voice, would each suggest that the law is anything but objective (Cardarelli & Hicks, 1993; Gotanda, 1995; Litowitz, 2000; MacKinnon, 2005). A critical legal studies (CLS) perspective would, again in varying ways, suggest that what the court does is something more akin to theatre than a sanctified chamber of objective law. While the legal realist approach adopted here does not agree with the extent of the critiques of law and its institutionalized role as an agent of (state-based) social control, there is much to commend the critical approach. The conflict orientation underscores a number of areas that simply cannot be ignored by legal scholars of all schools, including the need to consider the way in which the reality of sentence outcomes is shaped by a wider context than the ostensibly impartial, professional workings of the courts (Arat-Koac & Comack, 1999; Comack, 1991).
Second, Chapter 2 reviews the substantive methodological and more ethereal debate about philosophies of law. While the author takes the position that the black letter of the law is an important aspect of setting formal boundaries of what is to be defined as criminal or non-criminal, it is an incomplete discussion of what actually comprises the day-to-day functioning of the courts in the form of decision-making. Thus, legal positivism, and its formal, analytical deduction of the law to form valid judgments is not as helpful to the legal researcher looking to understand sentencing practices within regionally specific contexts as a methodology more open to extra-legal factors.
Third, part of the need to include context so overtly in the present analysis is the argument that the relative load of different kinds of charges before the courts actually affects the way in which specific charges are handled. Local realities will, in effect, bias even the most seemingly objective deductions from 10
the literal black letter law, or "paper rules" (Llewellyn, 1962: 71)-something that
certainly is at odds with classical legal positivism. Furthermore, in failing to
account for this reality in sentencing practice, any subsequent policy or
programmatic statements about the principles of sentencing are likely to be
misguided. If, for example, adjustments are made to principles of sentencing
(S.718, Bill C-41, Ch. 22) to suit the particular circumstances (be they real or
assumed) in jurisdiction x, this may be seen locally as a logical adaptation to x's
particular circumstances. The issue here is whether or not this context-specific
practice should be applied to sentencing practices federally. If the answer is yes,
then one is compelled to follow what will be discussed below as "determinacy"
(that sentences should be roughly equivalent for all subjugate jurisdictions).
What may be missed in such an approach, however, involves what can be
described as local justice. If the specific context of jurisdiction x is used to
amend existing practices for all other jurisdictions (such as y or z), such a change
may cause more harm than good. In essence, the debate between determinacy
and indeterminacy amounts to a question of how much variation is acceptable in
order to describe existing practices as either determinate or indeterminate
(Roberts, 1999b).
This author sees this as primarily an empirical question, and one with
qualitative input. Much of the concern raised by public, media and criminal justice professionals alike is centred on there being "too much" or "too little" variation in sentences. The public, and of course the news media, tend to see sentencing as problematic not so much for its degree of variation across contexts but for its general leniency (Editorial, 2004). Various research endeavours on
behalf of the Sentencing Commission (Roberts, 1988b; Rosenfeld, 1988) support the observations of the 1987 ~eport~:that "the public's faith in the deterrent effects of harsh punishment appears unshakeable" (Canadian Sentencing
Commission, 1987: 23). Although it is common practice within the academic literature to point out this state of affairs, the inability of the academy to speak usefully to "faith" is perhaps the more sobering thought. Recent efforts to bridge this gap (Doob, 2000; Roberts, Stalans, Indermaur, & Hough, 2003) puts the public in a more complete and complex light. Doob suggests that rather than assuming that the public is incapable of understanding complexity within the criminal justice system, academics and practitioners need to move the discussion beyond the unhelpful (and inaccurate) dichotomizations of too harshltoo lenient.
Put simply, researchers and those working in the field need to put more energy into communicating their understanding of this complexity more effectively.
Here, it is argued, legal realism has much to share with work from the
Critical Legal Studies (CLS) tradition, although there are, of course, significant points of departure which will be taken up in the next chapter. Arguments pointing to the need to understand the complexity of legal studies are not new.
John Hogarth's classic work on Canadian magistrate decision-making is perhaps the most widely known argument for taking context seriously in making sense of sentencing (Hogarth, 1971). This historical and situational context is a platform
4 This document (February, 1987) was produced with Judge Archambault as Chairman. The Commission's report was also prepared with research by Anthony Doob, and Julian Roberts, both of whom are among the most active and influential of court records researchers in Canada. This document must not be confused with the "Archambault Report" (1938) on prisons. from which one can begin to account for complexity in sentencing, and given
regional variation (across Canada) in the types of cases appearing before the
adult criminal court, it seems that some level of indeterminacy is to be expected
in sentence outcomes across jurisdictions.
What is needed is a solid, empirical baseline or foundation from which to
support policy and planning work at the legislative level and to support theorizing
on law and society issues. Policy changes, and nowhere is this more important
than in matters of the criminal law, should not be undertaken without knowing
something of (1 ) the form and nature of existing practices and their typical
outcomes (or outputs); (2) and the likely effects of any policy changes on this
understanding of current practices. Policy changes and law are especially
important to have a reasonably firm understanding of what any changes in one
might lead to in the other. The implications of this may adversely impact
individual freedoms if these changes are not fully understood. In this regard, the author follows Brantingham's advice nearly two decades ago, that, "questions about what constitutes reasonable variation in sentencing will continue, and, at a normative level, cannot be easily resolved. For the normative debate to have practical relevance, however, information about actual sentencing patterns is necessary" (1985: 303). This research is offered as part of the foundation that will eventually establish this baseline for jurisdictions beyond BC. Beyond this base, however, this work constructs simple simulation models which will provide policy planners and sentencing researchers with a means for "testing" policies before rolling them out in actual practice. It is in this vein that this dissertation can be considered a modest contribution to the growing field of computational
criminology.
The layout of this dissertation is as follows. Chapter 2 sets out the
substantive issues pertaining to the key philosophies of law, and describes how a
pragmatic, legal realist theoretical approach is the most fruitful framework from
which to study administrative court records. Chapter 3 looks at the historical
context of sentencing research in Canada, and how the various themes identified
in the first chapters are addressed in theory and practice. In Chapter 3 it is
argued that while much is said about sentencing as a social process, the same
energy has not been applied to documenting the empirical patterns concerning
either the type of sanctions being offered, nor their quanta (or amountllength).
This research is offered as a first step to reduce this gap. Chapter 4 documents the research methodology and the strategy adopted to minimize the limitations of the aggregate data. Care is taken to avoid "asking too much" from the data. As an administrative information system, JUSTIN is not currently equipped to capture more than basic demographic variables such as age, and sex of accused. Other than these fields, detailed "case" characteristics, such as prior convictions, are not available. Despite this limitation, the extracted Adult Criminal
Court Survey data for British Columbia contain a wealth of appearance and disposition information at the charge level. Complete sentence combinations can be tracked, and as well, with the aid of supplemental tables as supplied by the
Department of Justice, the study data are coded for the single Most Serious
Sanction (MSS). After the methodology is described, Chapter 5 reports the key trends for
the two levels of sentencing permitted by the data: the complete (total) sentence,
and the MSS. Particular attention is paid to dispositions stemming from the
consumption of and trafficking in controlled drugs and substances. Chapter 6
contains a brief discussion of some of the themes identified in the analysis and
outlines ideas for future research.
Key among these is the need for a concentrated effort on unpacking the
history of court events tied to each individual and then for each information. This will provide a more detailed look at the process of charges from initial hearing on through to final disposition. Such a study could focus on the patterns that distinguish between those that flow through to a final disposition of guilt and specific sanction or combination of sanctions. The volume of such records demands that some form of selection criteria be met-either by region or type of initial charge. A rough estimate of all court appearance information for
Vancouver for the study period ranges between 300,000 and 400,000 records (or between 4 and 5 times as many records as are considered in the present study).
While this study focused entirely on administrative records, it a more complete picture of sentencing patterns would benefit from a more qualitatively focused inquiry. A systematic analysis of a sample of case files for one or more jurisdictions would make a valuable contribution to the present study. Interviews with key members of police officers, Crown and defence attorneys, and of course, the judiciary itself, would also provide a more complete view of what the courts "do" every day. PHILOSOPHY OF LAW
"[Slubstantive rights and rules should be removed from their present position at the focal point of legal discussion, in favour of the area of contact between judicial (or official) behaviour and the behaviour of laymen; that the substantive rights and rules should be studied not as self-existence, nor as a major point of reference, but themselves with constant reference to that area of behaviour-contacts" (Llewellyn, 1962: 16, emphasis in the original).
2.1 Whyaphilosophyoflaw?
This chapter sets out the main philosophies of law from which one can begin to interpret principles of sentencing that form the substantive matter of what follows in this chapter and the next chapter. A first step in reaching this objective is to take a moment to clarify the usage of a number of specialist terms within the philosophy of law literature. For purposes of this discussion, and following Finnis (1980), the descriptive terms "legal philosophy" and
"jurisprudence" are intended to cover the same intellectual ground, and are used interchangeably. Similarly, one may also encounter another term, one perhaps more familiar to a social science audience-that of "sociological jurisprudence".
The attraction of the latter term is that it underscores the importance of understanding all things legal with a view of their impact on the social world and vice-versa. This is not to say, however, that social scientists should neglect the more strictly focused study of philosophies of law (P. J. Brantingham & Kress,
1979). Although Brantingham and Kress warn of the tendency for social science disciplines to neglect, or under use, formal philosophies of law, they also call for increased use of these same disciplines within jurisprudence to reach a more complete understanding of how laws affect the real world. It is in this spirit that the present work unfolds.
To avoid oversimplified views of what the criminal courts "do," one must acknowledge the formative role of jurisprudence "proper". This chapter outlines
(briefly) four general approaches discussing the form and function of law. These approaches are put forward not as a complete discussion, but with a mind to setting up how jurisprudence can assist the social scientist in organizing his or her research as it may relate to legal issues. While there are many ways to classify the various approaches to legal thinking, this study follows the broader classifications of natural law, legal positivism, legal realism, and critical legal studies (CLS). Each classification is of course a crude categorization and does not immediately allow for the obvious formation of various sub species, but after this crude step is taken, each can be explored usefully along two-dimensions critical to the present discussion.
The first dimension involves epistemological issues. Jurisprudence represents a systematic effort to describe what is possible in the law itself, and second, how, within these limits, it might be usefully applied and under what conditions. The former issue can be specified as the ontological basis from which the spirit of the law springs, while the second is more a question of epistemology, inquiring about how might one use (or apply) what is ontologically possible in the world around us. Stated more directly, the ontological side of law is its potential, while the epistemological provides its formal structure. Such
assumptions are not limited to the legal sphere of what can be known or proved
in court, but also that which can be known more generally and essentially; it is
here that the philosophies of science and jurisprudence intersect. It must be
made clear at the start, however, that the main thrust of this chapter is not an
extended essay in formal jurisprudence per se, but rather, an account of how
each philosophy of law is predisposed to a particular set of precepts and
principles. It is left to the following chapter to trace the relevant literature
regarding sentencing in Canada.
The remainder of this chapter discusses each of the main philosophies of
law-natural law, legal positivism, legal realism, and critical legal studies and
reflects on the general relevance for each regarding sentencing principles. The
following discussion is intended as a general introduction to legal positivism, and
not as a systematic review of key debates in jurisprudence; this genre of
scholarship has grown rather steadily in its modern form since the early 1900s,
and continues to attract attention (Bix, 2004; Brooks, 2002; McLeod, 2003). To
undertake such a review would thus require separate treatment to do it "justice".
The author sees possibilities for each of the four main species of legal theory, but concludes that legal realism holds the most promise for understanding the
empirical picture of sentencing patterns.
2.2 Natural Law
The concept of "natural law" is variously defined, but it is fair to describe it as having at least two ethics: legal and moral (Finnis, 1980, 2002). Much debate surrounds the interaction between legal and moral ethics-and how each
(separately, or in some combination with the other) inform western jurisprudence.
Finnis holds that as a theory, "natural law claims to be able to identify conditions
and principles of practical right-mindedness, of good and proper order among
men and in individual conduct" (Finnis, 1980: 18). Theories of natural law and of
morality are important foundations for discussing legal theory in general, as it
forms, at a minimum, the ideals or expectations of existing legal systems--or at
least what they "ought" to be. Natural law principles help us become more
precise about how we conceptualize legal theory. If, for example, moral
constructs such as "good" and "not good", are possessed of an objective reality,
then such concepts can be used to evaluate existing laws-based on their ability
to further the principles of humanity. Aquinas, a thirteenth-century theologian
described human beings as "naturally" rational, and that this rationality was part
of the essence of being human; in other words, to behave irrationally was
contrary to the objective essence of being human-the famous "dictate of right
reason" (McLeod, 2003: 20). The remainder of this section outlines how natural
law theory attempts to speak to legal and moral dimensions, and precisely how
one might conceive of principles and examples of "practical reasonableness"
suggested by Finnis (1980: 18).
Natural law predates the other theories of jurisprudence discussed here,
reaching as far back as the Classical period, with the work of Plato (c.429-347
BC), Aristotle (384-322 BC) and Cicero (106-43 BC) (Bix, 2002). Modern formulations of natural law are, of course, modifications of these classical 19
philosophers. Tierney (2004) sees this process as starting in the late medieval
period with William of Ockham, a fourteenth-century Franciscan philosopher
whose idea of subjective rights would become an essential element of the natural
law tradition. Finnis, on the other hand, sees St. Thomas Aquinas (c.1225-1274) as the precursor to modern day natural law theory (1980). Like many intellectual traditions, natural law stands on the shoulders of those from the classical period.
The importance of this lineage is that much of what natural law writers share as a focus is primarily a set of ethical--or as with Finnis, "meta-ethical1'--questions, not formal legal precepts, which are the formal rules that attract so much attention from the analytical jurisprudes of the positivist ilk. Despite the maturity of the natural law perspective, and the fact that it predates other approaches, some continue to misunderstand its overall thesis (Bix, 2002; Finnis, 1980, 2002).
Before exploring these purported confusions, let us first look at what
Finnis holds to be the basic principles of modern natural law. The first issue for
Finnis is the selection process, or methodology, of determining what concepts are reflective of practical reasonableness in the law. A difficult concept, the principle of practical reasonableness demands that anything included in the law must be that which any sane person can see as contributing to human goodness.
In other words, concepts that contribute to the human 'good' are self-evident, and in the main, are recognizable to most anyone who takes the time to consider them and their place in the law. Notice that 'most anyone' does not require that people consent to only good concepts in law, but more precisely they "assent to it without needing proof of argument" Finnis (1980: 31). 20
Positivist (Hart, I961 : 187) and Realist (Llewellyn, 1962) writers both take issue with this construct as being loose idealism. But is this a fair criticism? To such a challenge, natural law theorists would likely point to the ability of any mature and rational person to 'see' good (or just) and bad (unjust) phenomena in the world around them, and to be able to agree with the majority of his or her fellow citizens on the bulk of these decisions as to their classification as naturally good or bad. Finnis suggests that this self-evident decision making process is pre-ethical, and is not based on assumptions of facts, human nature, or teleological assumptions about God or any other aspect of nature. Self-evident principles are simply 'there' as an objective reality, and as such are properly meta-ethical. Quoting Aquinas, Finnis suggests that "whatever is contrary to the order of reason is contrary to the nature of human beings" (36), and that it is the criterion of reasonableness that decides what is good, not that it is in accordance with human nature. To argue the latter would be an instance of teleology-that things are to be judged 'good' because they are a part of human nature, and human nature is constituted of things that are good for its continued existence.
If the concept of goodness is complex, fortunately the idea of practicality is much more straightforward. Natural law, despite charges of idealism from its critics, is actually more closely aligned to the positivist and realist legal thinkers than one might first expect. At a general level, all three camps-natural, positive and realist-see their work as practical, and further, that this real world utility is precisely what researchers within sociological jurisprudence and the social sciences bring to this discussion. Obviously, there are differences in the confidence of the social sciences as a "science" or just how far the real world can
be reduced to empirical observations, but there is enough convergence here to
sustain the conversation. The formal separation, however, between natural law theory and the other approaches is that the former sees practicality in the ought questions-that is to say that issues of what ought to be done have a real impact on the way people interact with the law.
This debate concerning the role of ought and what is provides an interesting look into the role--or at least the possible roles--of criminal justice policy, of which sentencing policy would be a key constituent. In fact, the strength of natural law is its argument for how the positive law is to be carried out and in the furtherance of what purpose (Bix, 2004: 74). Natural law theory also presumes a rule of law that takes into account the inherent need to promote justice and furtherance of the common good. "The principles of natural law explain the obligatory force (in the full sense of 'obligation') of positive laws, even when those laws cannot be deduced from those principles" (Finnis, 1980: 23-4), and in so doing, correct the formal application of the black letter of positive law.
The role of ought and is questions will find further discussion within the remaining three perspectives, but one final point bears raising here: that situational complexity, or context, is a central aspect of sentencing principles. Take, for example, the current context of the war on drugs that characterizes the criminal justice policy in the United States, and perhaps to a lesser extent here in Canada as well (Boyd, 1991). As Boyd reminds us, both nations' controlled and illicit drug policies are not without contradictions if one uses the concept of social harm as the criterion for determining what should and should not be positively
controlled in the law. Even if one were to dismiss the overtly moral aspect of the
natural law perspective, it reminds us that we must consider any impact our laws
have on people, not only as a divorced set of logical possibilities deduced from
legal precepts. Of course, the critical legal studies literature will take on this
theme in earnest. Finally, normative considerations underscore the need for a
fully contextualized understanding of any theoretical or empirical observations.
Ranges of a given sentence type (prison, for example) in one region may make
"sense" given the local circumstances. The normative question surfaces,
however, for now one is confronted with just how much variation is reasonable.
One approach to the role of morals in legal theory is the separation thesis,
typically associated with legal positivism, and it is to this perspective that we now turn.
2.3 Legal Positivism (Positivist Law)
Like the Natural Law perspective, legal positivism can claim a rich
historical lineage, including Thomas Hobbes (1588-1 679), David Hume (1 71 1-
l776), Jeremy Bentham (1 748-1832) and John Austin (1790-1 859). It should be
noted, however, that these writers were more directly concerned with understanding the governance of society, and how laws may be used to further this aim, and as such, they are not, strictly speaking "legal positivists".
Nevertheless, their shared interest in moving away from late medieval and the early modern (c. sixteenth-century) view of law as that which is naturally given by sovereigns to their subjects as a function of their special relationship to God sets
them in the "positivist" camp.
Perhaps the most influential positivist theoretician is H.L.A. Hart (McLeod,
2003: 20). Hart, in several of his works (1963; 1964; 1977), and most notably in
his classic, The concept of law (1961 ), argues that positive law requires no
necessary appeal to natural goodness, but rather, laws are created by and for
humans. Hart accepts that morality has some imprint on law, and this "cannot be
seriously disputed" (181 ) but this interaction does not impart any moral authority.
As such, laws obtain their validity from the authority from which they sprung, and
"there is in no sense a necessary truth that law reproduce or satisfy certain
demands of morality" (Hart, 1961). This distinction is also known as the separation thesis, where normative or moral aspects are to be isolated for separate scrutiny (McLeod, 2003). A common obstacle to the non-specialist in the philosophy of law literature is the distinction between inclusive and exclusive
positivism. Each represents a differing level of acceptance of the separation thesis, with the former agreeing with the allowance (however limited) for morals to brush up against law in action-along the lines of the Hart discussion above, and the hard line approach of the latter which holds fast to the absolute separation of law and morality (and more recently, Himma, 2002). Perhaps the most notable exemplar of this tradition is Joseph Raz (1980), who first articulated his position in 1970 (see Marmor, 2002, for a more recent articulation).
Determinacy, a key issue of contention in the philosophy of law literature, centres on the discussion of how laws can be uniformly applied. Positivists would argue that not only is it possible to apply the law in such precise terms, but
so too is the final decision and the quanta of any resultant sanctions or terms. In
short, positivists are overwhelmingly in support of the determinacy thesis
(Himma, 2002; Marmor, 2002; Ross, 2001 ; Solum, 1997; Tuori, 2002).
Possibilities abound, in the legal positivist view, for a true science of law,
although there are differences in just what this science would look like in practice.
Hart, for example, sees law as part of an officially sanctioned institution
(authority) that can be studied in an objective manner (Hart, 1961, 1964, 1977;
Hart & Honorge, 1959). This general assumption is shared, to a limited extent,
by legal realists who are themselves largely convinced of the value of a
systematic study of the criminal justice system.
The rub, ontologically speaking, between positivist and realist projects is
the degree to which one can resolve the context of law as an institution with law
as a social system. The latter conceptualization is often less pure in an
analytical/logical sense and many legal positivists argue that it has become
distracted from the real purpose of studying law-to determine the function of
laws in deducing valid decisions based on the rule of facts. If one is focused
entirely on literal facts as the constituent elements of a logically deductive
science, sociological considerations fall mostly outside the black letter of law5
and its function in a closed system of legal precepts. In this sense, positivists
conceptualize law as a closed system of formal rules, and not a social process, at least in their idealized approach to scholarship. This author sees the
5 The "black letter" of the law has a similar meaning as the "rule of law", that is, the law is objective and unambiguous. Legal positivists tend to support this view of the law ; see (Ronald. M. Dworkin, 1977; Hart, 1977). 25 separation of systems from processes as more of a point of emphasis that separates the end products of legal positivists and their combined critics from natural law, legal realists and the critical legal theorists; the former seeks to understand law itself-how it functions and within what limits. Critics of legal positivism see the limits of the law as more of a focus on power relations and social stratification than how law can or cannot respond to complex and contestable legal decisions.
Some cast legal positivism as an overly rigid separation of the law from the social world, of which the classic example is Fuller's revised edition of The morality of law, where he renews his opposition to "analytical legal positivism"
(Fuller, 1969: 191-7). Charges of formalism often resonate with legal realists and critical legal studies advocates perspectives alike, but Hart (1961; 1977) and more recently Sebok (1998) point to this as an overly narrow and pejorative interpretation. How this argument plays out is our next subject.
2.4 Legal Realism (Realist Law)
Legal realism takes its distance from the positivist camp mainly in the demand that positive law cannot be crafted-let alone applied-in an objective vacuum. Here we see that law as process allows for the inclusion of situational complexity, or context. Legal realism thus finds common ground with critical legal studies (CLS) theorists, but the latter see the former movement as failing to truly appreciate the power of ideology in law (Numan, 1997). The issue under debate between realist and positivist law is the degree of determinacy in the decision-making process (Raban, 2003). Indeed, legal realists see unrestrained 26
positive constructions-also referred to as legal formalism-as making too much
of the deductive quality of legal decisions and how that legality is deducible from the formal letter of the law, regardless of outside pressures. On the contrary, legal realists see the law as a negotiated terrain, fraught with real world complexities that go beyond even the inclusive positivism supported by Hart discussed in the previous section. The author takes this view, arguing that complexity and contextual indeterminacy are not necessarily rectified by even more formal language and refinements (Brooks, 2002). But there are limits to how such realism manifests itself. Unlike the CLS framework, such as Numan
(1997), the present author does not see ideology as the overwhelming reason for this indeterminacy. This is, of course, entirely a matter of perspective and is reminiscent of the separation thesis, with one referent, in this case ideology of elites, being either too central or not central enough for the respective camps.
The schism between legal realism on the one hand, and legal positivism on the other, can be understood also in terms of their respective units of analysis.
Positivists seek a definition of truth in legal facts, which is, of course, part of a realist discourse. Legal realists, however, are less concerned about the nature of decision-making to decide legally debated cases, a decidedly positivist enterprise, than they are with the understanding of the actual effects of law.
Without a shared referent, it is not surprising that each philosophical camp accuses the other of oversimplification of its key objectives at the hands of their critics. A recent critique of the American Legal Realists offered by Moore notes that: "Contrary to much of the overblown and misdirected rhetoric of the American Legal Realists and their intellectual descendents, a decision in a
disputed legal case involves logical deductions. The premises are matters of fact, law and interpretation, and the conclusion is the proposition describing the
decision in the case" (2003:25).
The thrust of this critique is to uphold the possibility of a pure, objective validity of law as text in an effort to support logical deductive method in legal decision-making. Such positioning, for the legal realist, is relatively unimportant
in the face of what actually happens: "the question is how, and how much, and in what direction, do the accepted rule and the practice of decision diverge. More: how, and how much in each case? You cannot generalize on this, without investigation. Your guesses may be worth something in the large. They are worth nothing at all, in the particular" (Llewellyn, 1962: 17, emphasis in the original). Llewellyn suggests that left to logical deduction alone, scholarship becomes stunted: particular case outcomes would hardly find attention beyond whether the case was decided in accordance with logical principles as demanded by the facts of the case. Rules and behaviours are thus cast as two separate, although mutually important sites of inquiry, and must not be thought of as mutually exclusive ends of legal studies (Llewellyn, 1962).
While proponents of legal realism and some strains of legal positivism can be seen to share, somewhat uncomfortably, an essentially realist ontology, they recognize the potential value of involving the social sciences in legal studies.
Their combined realisms allow for enough stability in social facts, or observable, empirical traces of social processes in action, to make an essentially scientific method possible. Here again, the debate between a positivist determinacy and the realist indeterminacy surfaces. CLS holds with the indeterminacy thesis, but the reasons for indeterminacy are seen as more structurally worrisome, and include systematic discrimination along race, gender or class lines. This research is offered as an example of how social science can help further the understanding of the law as Holmes suggests "the life of the law has not been logic; it has been experience" (cited in Brooks, 2003: 193). Brooks also notes that if experience is the working end of law, it begs the question of whose reality is to be considered. Matters of privilege and power are familiar points of focus whenever people's experiences in the social world are concerned, and in this regard, specifically, legal realism is not without its critics (Moore, 2003; Roosevelt
111, 1999; Schroeder, 1996; Singer, 1988; Weinberg, 1997), each taking issue with the impossibility of objectivity.
While this certainly is not the place to contest the possibility of reality, two points can safely be made about ontology at this time. The first is the ontological position that an objective knowledge about the world is possible. This is the essential tenet of a realist ontology. The second position holds that while reality exists, it is subjective. Critical theorists typically see that even where reality can be found, or a set of referents identified, its nature is necessarily contested, negotiated and in continual flux as elites, or insiders, reify the nature of the socially understood reality. Against this subjectivism, some realists, and perhaps nearly all positivists, would argue that not only is there a reality, but it is objective, and can be observed as a force outside of, or beyond, social processes. This 29 meaning of objectivity is neither absolute nor as categorical as one finds in more purely philosophical discussions (i.e., in metaphysics, for example); it is possible to make, in the language of the social sciences, reliable and valid, observations of the social world to allow for meaningful study. It is perhaps this mixing of meanings of realities that breeds confusions, and can perhaps be explained by the fact that the academic training of legal professionals is more in line with formal philosophy, while other legal scholars tend to be more familiar with the social sciences' meanings of subjective and objective reality. Cast in these terms, the substantive difference between the legal positivist school and the legal realist school involves epistemology, even though each shares much of the same ontological assumptions in the realm of legal philosophy.
Legal realists are therefore best understood as a critical reaction between the First and Second World Wars to what was seen as overly enthusiastic faith in analytical methods such as those found in the legal positivists at the turn of the century. In this critique, the realists find some common ground with CLS writers against a shared foe-the analyticalllegal positivist school. Such shared ground quickly crumbles away, as the CLS theorists find fault with the realists' refusal to acknowledge the full (and critical) meaning of Holmes's comments about lived experience (above) might suggest. The position taken in this research is that while the realists see context as important, and something desperately missing from the analytical-positivistic point of view, it does not follow that the contextual interruptions of that logic are, necessarily, completely subjective in nature. As mentioned previously, aspects of the social world can be usefully measured, ordered and observed-providing of course that one does not take observation to
the Humean extreme. Social conflict and inequalities in the criminal justice
system's treatment of accused can, in this author's view, be acknowledged,
traced and understood empirically. Furthermore, such an ontological position
does not demand the rejection of ideology as operative in certain circumstances,
but rather, an understanding that there are likely to be a host of more immediate
and directly measurable factors that can help make sense of social institutions such as the Criminal Courts. In the specific context of sentencing patterns for the study area, there are measurable phenomena that will allow a comprehensive analysis of the observed patterns, each in its own context. Such confidence in the ability of social science research to capture the substantively significant aspects of the travels of the accused through the criminal justice system is not likely to be shared by CLS, as we shall see in the next section.
2.5 Critical Legal Studies (CLS)
With few exceptions, the CLS approach is unrelenting in its condemnation of legal realism, despite the critical stance of the latter against the various forms of legal positivism. Numan recounts the failings of the realists who:
...either failed to recognize the broader implications of their critique of mechanical jurisprudence ...or were appalled by those implications and chose to reject them. In particular, together with their successors in the legal process school and the law and society movement, the legal realists failed to acknowledge the extent to which political ideology influences both judicial adjudication and legislative decisions. (Numan, 1997: 23)
I suggest that the reason for this objection is not so much that realists fail to see the extent of ideology as operative, but rather they do not see it as 31 extensive or as primary as Numan suggests. Clearly, ideology plays a role in developing legislation and justice policy but ideology is in itself not all powerful, a prime mover in the social world. If the positivists have found "God" in the letter and form (principles and precepts) of the law, the CLS paradigm sees it in ideology. However, such a conservative counter to a radical notion is a mirror image of what CLS theorists would expect from a realist (who finds his or her
"God" in iioversimplifications" of the social science kind). Critical scholars see the solution to wide scale inequalities in equally wide scale, systemic change; realists, on the other hand tend to a more conservative approach, and seek change of the existing system via incremental adaptations based on what is epistemologically understood as sound sociological science. Here again we see the ontological differences between critical and realist approaches as paramount; where the realists are comfortable with the ability of the social sciences to ensure that existing legal structures (and its specific outputs: decisions based in law) are, more or less, in line with the "maintenance of a just, peaceful and safe society" as stated in s.718 of the C.C. the critical community clearly is not. As a general rule, for CLS, incremental change in the existing system simply perpetuates, at best, more of the same or at worst, it co-opts or pre-empts the needed momentum to convince the wider community to demand or force wholesale changes. Regardless of one's position on the scale of legal conservativism or radicalism, if one wishes to seriously entertain the notion that context matters, and, more particularly, that the decisions made in the courts also possess real power to affect subsequent decisions, one must also address the 32 critical legal studies literature as this body is unified in its pointing to a thick, or deep meaning to context. Context, in CLS discourse, is more akin to what
Clifford Geertz (1973: 10) calls thick description, whereby situational complexity is such that only detailed, historical, anthropological or semiotic (Milovanovic, 2002) techniques are required to first establish what it is that the social scientistlresearcher seeks to accomplish next.
Perhaps the best way to appreciate the scope of the CLS approach to legal studies is to quickly visit the main branches of CLS in order to outline first the nature of the debate, but more importantly in the context of this research, to underscore the possibilities for a pragmatic infusion of critical thinking into the present understanding of sentencing as a complex and situationally dependent, thick, process. The range of critical legal scholarship is itself at least as differentiated as the other general approaches to legal philosophy discussed above, but some generalization is required in order to speak of any convergence in philosophies of law (McLeod, 2003). Even so, one must break down the critical approaches to see how each genre can inform what this author feels to be an opportunity for meaningful convergence. CLS is commonly subdivided into
Marxist, feminist, gender, race, and post-modern approaches, with each designation arising from the primary critical theory employed. Most, if not all, critical theories employ more than one perspective, and thus, extra care must be taken to avoid procrustean simplifications. With this warning, the discussion now turns to an overview of each of these aspects of CLS and is followed by a short summary of the constructive overlaps with the realism entertained here. Although the author is unable to entertain a truly thick description along the lines
suggested-or rather implored-by Geertz (1973), it is hoped that after outlining
the complexity of sentencing decisions for the jurisdictions within the eight study
areas in this dissertation, that future work can take on this omission.
Marxian critiques of social, economic and political institutions help to
review their criticism of the law in general, and the notion of equity in particular
(Barry, 1975; Comack, 1991; Fineman, 1995; Mandel, 1984, 1985; Sutherland,
2005; Turk, 1979). Beyond the basic class struggle, Marxist critics of the criminal
justice system point to the ability for social-political elites to obtain and reinforce
legal privileges throughout all stages of legal process. In the Canadian context,
Mandel (1984; 1985; 1994) argues that the capitalist state is able to effectively
transfer political contests (or dissent) into legal battles, the significance of which
is that the state can be assured of a favourable (capitalist, state-ist) outcome by
virtue of its ability to shape the legislation that determines the very rules by which
the courts function. Cormack (1991) sees a similar process in the criminalization of economies such as the trade in opium by Asian immigrants in 1907-8 that
allowed for a convenient destabilizing of socialist political parties. Haney (2000) calls for increased attention to the ways in which feminist scholarship can
promote a sociologically informed theory of state functioning in legal processes,
particularly in the context of power stratification across gender, race and economic lines. Here we see how feminist theory can be explicitly inclusive when it comes to theorizing about (in)equality in the social world. One of the leading Marxist-feminist legal writers, Catharine MacKinnon, argues extensively for a more theoretically nuanced understanding of the power of gender, and
particularly masculinity, and the state (MacKinnon, 1989, 2005). MacKinnon
describes the state as an instance of "male juriprudentiality" in that the state
"adopts the standpoint of male power on the relation between law and society"
(1989: 165). She goes on to say that social power is a proxy for formal power,
where "[tlhose who have freedoms like equity, liberty, privacy and speech
socially keep them legally, free of government intrusion. No one who does not
have them socially is granted them legally" (165). Although critical of the
masculinised, capitalist, state, MacKinnon's post modern critics see her use of
Marxism and feminism as unable to move beyond the modern, although
Sutherland's recent work (2005) provides a compelling discussion of how both themes remain viable and positive contributions to both fields.
Feminism also sees similar themes of conflict when bringing critical race and gender theory to bear on current social arrangements. While critical race theory (Gotanda, 1995; Russell, 1994; Scheppele, 1994) and gender theory
(Auchmuty, 2003; Malleson, 2003; Resnik, 1996) are discussed concurrently in this work, they are truly distinct approaches, but it is their capacity to work in concert that is of interest here. Wendy Chan's (1997) work on gender bias and the court explores how court officials implicitly handle gender difference in various court procedures, such as expert witness testimony and the expected roles available to women charged with killing their male partners in self defence.
Similar biases are observed for girls transferred to adult court and subsequently sentenced to custodial terms (Gaarder & Belknap, 2002). Gay and lesbian studies find similar conflicts within the formal court processes (Auchmuty, 2003),
and remind us that heterosexual expectations distort the availability of the courts
to pursue cases equitably. It is interesting to note that Auchmuty's work finds
that in certain situations the absence of heterosexual power dimensions actually
frees the court of its typically discriminatory assumptions and makes it possible to
proceed more equitably.
While the general criticisms reviewed so far provide the theoretical
foundation for extensive critiques of conventional positivist and realist legal
studies, there remains one last genre of criticism that goes even further in its
dismantling of realist ontology-postmodernism (Eichner, 2001 ; Litowitz, 2000;
Schwartz & Friedrichs, 1994; Wicke, 1992). Again, it is beyond the scope of this
project to attempt a full review of post-modern reactions to the state, or even the
law, but a few words will be made in an attempt to capture the main elements.
The most notable aspect of post-modern theory is its message of rejecting
modern institutions, or even the language or semiotic schema we use to discuss
them. In this vein, it is possible for the postmodernist to question the validity of
seeking modern notions of gender difference in the first place (Eichner, 2001).
The idea of law (itself a truly modern construct) is so far outside what post-
modern theorists are trying to explore that perhaps theorists of this ilk are not
considering the law as something deserving critical attention-even by post-
modern feminist theorists (Eichner, 2001 ). Patricia A. Cain, in a 1990 article for the Georgia law review (cited in McLeod, 2003: 157-8), describes feminist post-
modern legal scholars as a group that: ...eschew[s] the idea of unitary truth, of objective reality. They readily admit that categories, especially gender categories, are mere social constructs. Equality, too, is a social construct. It is true that these constructs, as products of patriarchy, are in need of a feminist reconstruction. But postmodern feminism tells us to beware of searching for a new truth to replace the old. There simply is no such thing as the essential "woman1'. There is no such thing as the woman's point of view. There is no single theory of equality that will work for the benefit of all women. Indeed there is probably no single change or goal that is in the best interest of all women.
Cain's characterization of post-modern theories and post-modern feminist
work is interesting on a number of fronts. First, postmodernism directly
challenges the ways in which even CLS thinks about the world; key concepts such as femininity or masculinity are without objective, identifiable proxies, or even purely subjective referents. Viewed from this perspective, the purpose of the law would seem to be without the logical support claimed by the positivists, or the empirical quality assumed by the realists; it is even to be questioned if there is a subjective, individually constructed reality to be found for the modern critical theorists. The implications of this line of thinking go beyond mere critique into obliteration, and purposefully so. Clearly, there is little common ground between the post-modern and the realist, and likely none to be found for such a modern project such as the law. However, the realist can still take away the message to keep him or herself ontologically and epistemologically honest. Without at least some consideration of the philosophy underneath the law can bring any theorist back to the warning offered by Brantingham and Kress (1979) that opened this chapter-that criminologists and sociologists of law should consider more of the history of ideas from when they came. 3 CHAPTER 3: SENTENCING RESEARCH IN THE CANADIAN HISTORICAL CONTEXT
The conflicting judgments on the issue of uniformity contain nothing more than semantic disputes. Uniformity, so far as desirable, means uniformity of approach, or approximate equality of treatment. Wide disparity is repugnant to our notions of justice. The basic premise... is that while absolute uniformity of sentence[s] [is] not possible, nevertheless sentences upon like offenders for like offences should not be widely disparate (Nadin-Davis, 1982: 8).
This Chapter focuses on two main tasks. The first is to trace the historical development of sentencing principles and practices in Canada, with a particular focus on the Western Canadian experience, from the first Criminal Code (1892) through to the present period. The second task is to review the substantive literature on sentencing practices. Sentencing research itself is like any other field of research in that it has concentrated on key theoretical debates on the one hand, and the consciously applied, research literature on the other.
As mentioned in the previous chapter, this research promotes a pragmatic, realist approach to understanding sentencing patterns. This philosophy is reflected in Nadin-Davis' comments that open this chapter which serve as a reminder for what needs to be assessed is "wide" or "unwarranted" disparity. This approach is more comforting to those who view social phenomena from an aggregate, or "longue duree" ~ers~ective.~Moreover, it is
part of a body of scholarship that promotes an increased involvement of the
social sciences in legal research as part of its research programme. This call is
not new, and can be traced at least as far back as the 1920s and 1930s period of
"American" legal realism. While some suggest that legal realism is no longer a
part of current legal scholarship (Ronald M. Dworkin, 1977), this work is offered
as one instance of how a realist-based theory of jurisprudence can inform current
concerns in understanding the sentencing process in Canada.
3.1 History of sentencing in Canada-European influences
The practice of historiography-the tracing of the intellectual history of the
subject of inquiry-while common in the discipline of history, is largely left
underdeveloped in the field of criminology. I argue that sentencing research
affords an excellent opportunity to show how the social, political and cultural
contexts collectively inform such intellectual movements as legal positivism, or
legal realism. Legal positivism, for example, benefited from the growing
dissatisfaction over what law-makers and jurists thought was natural law's
inability to identify in any objective, or real sense, a common good that transcended geographical or political boundaries. Positivism as a philosophy of science also enjoyed a rise in popularity after the European revolutions of the late eighteenth and early nineteenth centuries. Napoleon's appetite for
6 The Annales School and its interdisciplinary approach to the study of history in the long run are exemplary in their ability to observe subtle shifts in how social institutions such as the criminal court can change (or not change) over time. This chapter represents a start in this direction, and calls for more historical analyses of crime and criminal justice, see: (1985), (Friedman & Percival, 1981 ; Godfrey, Emsley, & Dunstall, 2003). 39
codification spread with his Empire as it attacked the bastions of the Ancient
Regime and its antiquated appeals to sophistry and metaphysics. The new,
post-Napoleonic Europe, embraced what can be described as a thoroughly
modern project of legal and civic progress. Natural law aesthetics were to be
replaced with the new science. In a sense, the teleological foundation of a
divinely-inspired state system was replaced with 'God' in the details. No aspect
of life was too insignificant for measurement or codification. Indeed a new field of
statistics emerged from this intellectual movement in the mid-1830s and '40s,
currently referred to as the moral statisticians (Taylor, Walton, & Young, 1973).
Belgian (Quetelet) and French (Guerry) statisticians were not only the first to
collect criminal statistics, but also detailed demographic data in support of
government administration, including taxation, enumeration and health. It is not
surprising that as the European Continent was becoming more accustomed to the ideas of classification, quantification and enumeration in the mid-nineteenth century, that colonial Canada would also inherit these as constructive notions for state development, and particularly, criminal justice reforms (Parker, 1981).
The history of sentencing in Canada is outlined in several works (Canada,
1984; Canadian Sentencing Commission, 1987; Friedland, 1984, 1988; Hann,
1988; Ortego, 1977; Parker, 1981; Roberts, 1998), and a brief review is presented here. Collectively this body of work reminds us that our understanding of current issues depends on our knowing something of our past. The development of sentencing policies and the hopeful sense of purpose with which the nineteenth-century legal reformers set out to correct the criminal courts of 40
England and Wales are described as less than successful (Parker, 1981).
Colonial replications of these efforts in Upper and Lower Canada were even less
successful (Canada, 1984; Roberts, 1998). The character of these efforts before
the proclamation of Criminal Code in 1892 is where we now turn.
Parker (1981) sees the 1840s as the starting point for Canadian Criminal
Code reform, with the establishment of an Upper Canada commission to look into
the large task of codification. Progress, though, was slow, and it took the better
part of two decades for the release of the Consolidated Statutes in 1859 (Parker,
1981). To be fair, the codification process in England was also slow, and the
eventual Code (1892) is more accurately appraised as a consolidation than a
codification (Canadian Sentencing Commission, 1987). The views of the various
officials contemporary to the 1892 Code were much more confident. A period
letter dated in the year 1891 suggested that the Code would be "some
preparation toward a scientific code" that would put the new confederation at the
"forefront of progress" (unknown author, cited in Parker, 1981: 263).
The rising confidence in the promise of a criminal science complements the Victorian world view that was operative for much of the last half of the
nineteenth- and early twentieth-centuries (Burt, 1965 (1944); Mayhew, 1962
(1862); Tobias, 1967). Mayhew devoted four volumes to the minutiae of
Victorian England's poorest citizens in order to catalogue their relationship to the social health of the state. Writing in the 1920s, Burt is even more overtly empirical in his measured observations of juvenile delinquents. By modern standards, period writers such as Mayhew and Burt are overtly moralistic in their approach-and when viewed from outside of their historical contexts, they may
even seem reckless in their pronouncements-but these authors cannot but help
to be creatures of their time, and in a sense are emblematic of a more general
confidence in quantification, classification and the medical model for social
science research, apart from supporting this new scientism, the Victorian ethos of
equally controlled social mores, delayed gratification and the much cited "work
ethic'' is reflected in the British and colonial criminal codes (see, for example,
Boyd, 1988).7
Despite the quest for systematization, current research does not find any
substantive impact of this movement on the consolidation or codification of early
drafts of the Code. In the 1830s, the decade in which the Kingston Penitentiary was constructed, sentences in the provinces of Upper and Lower Canada were
uneven in length, ranging from up to two years in provincial jails, or a minimum of seven years for sentences to be served in the federal penitentiary. This four-year discrepancy severely limited the sentencing discretion of judges and local
magistrates. Not until 1841 did this gap close with a statute decreeing the
Kingston Penitentiary as the custodial facility for the newly United Provinces.
Provincial jails still housed offenders for up to two years, but the gap for federally- sentenced offenders who were to serve time at Kingston now started at a minimum of three instead of the original seven years (Canadian Sentencing
Commission, 1987: 26). Still, no sentences could legally be set between two
7 See also the introductory note (at page 5) regarding Victorianism and the law. Similarly, Boyd's discussion of Victorian ethos is in the context of the origins of narcotics control in British Columbia, and the tension between politics, immigration and the province's growing primary resource industries, such as mining, forestry and fishing, which required a near constant influx of new, cheap (immigrant) labour. 42 years and three years, as there was no facility to accommodate such terms. The members of this Commission point out the irony of the sentencing terms as being a function of logistics rather than penal policy: "This amendment to the criminal law did not obliterate the fact that it was originally the nature of available custodial facilities which dictated the penalty structure, and not the other way around" (Canadian Sentencing Commission, 1987: 26).
With the B. N.A. or Constitution Act of 1867, the Canadian Sentencing
Commission emphasizes two critical elements that eventually served to continue an already awkward sentencing scheme: first, a federally controlled system of criminal law, and second, the federal government's delegation of offender custody (corrections) to the provinces. Both systems attracted mixed reviews.
The Commission notes the keen interest of Sir John A. Macdonald (then acting as Attorney General) in avoiding the "defects in the United States system" that allowed each state to "have a criminal court of its own", yet s. 92(15) of the
B.N.A. Act allows the provinces to each administer "punishment by fine penalty or imprisonment for enforcing any law of the province" (27). If the provinces could use custodial terms under the B.N.A. Act, then provincial laws-which is to say acts outside the definition of "criminal" in the Code-could result in jail. The mixing of federal and provincial duties regarding custody also serves to complicate the administration of justice, a practice which continues to this day.
The last stage of historical interest for the present study is the period of
"consolidation", from Confederation to the drafting of the Criminal Code of 1892.
For nearly a half-century prior to 1892 there had been talk of consolidation or even codification. Most of these attempts were abortive in one way or another or, if used at all, were nearly direct copies of what was tabled for use in England and Wales. This of course is natural enough, given the close relationship our nation has had with England. What is curious, however, is that the Canadian
(1869) iteration of the English Consolidation (1861) failed to meaningfully adapt to what was discussed in the Mother country as a disorderly effort. Even Charles
Greaves, the author of the 1861 English Consolidation, expressed concern that not enough had been done and efforts were necessarily incomplete:
I have long wished that all punishments for offences should be considered and placed on a satisfactory footing with reference to each other, and I had at one time hoped that might have been done in these Acts. It was however impracticable... The truth is, that whenever the punishment of any offence is considered, it is never looked at, as it always ought to be, with reference to other offences, and with a view to establish any congruity in the punishment of them, and the consequence is that nothing can well be more unsatisfactory than the punishments assigned to different offences. (Cited in Canadian Sentencing Commission, 1987: 29)
Not only were Canadian policy makers unconcerned about the negative public reaction to English Consolidation, Macdonald, while addressing the
House, went so far as to suggest that the "English system of criminal law, as a matter of science, was ...as complete as it could be". He also spoke of the pressing need for Canadian Consolidation (1869) to follow that of England as closely as possible:
...the language was as nearly as possible the language of the criminal ' laws of England.. .because it was of the greatest importance.. .that the body of the Criminal Law should be such that the Judges in the Superior Courts should have an opportunity of adjudicating on upon it, as on English law. It would be an incalculable advantage that every decision of the Imperial Courts at Westminster should be law in the Dominion. (Cited in Canadian Sentencing Commission, 1987: 30)
Clearly, Canadian politicians were unconcerned with Greaves'
reservations as they proceeded to adopt its content with Macdonald's vigour
Yet the Canadian approach to penalty was not identical to the English
model. Just a year prior to the Canadian Consolidation, the Penitentiary Act
(1868) borrowed liberally from the lrish system of remission, whereupon custodial
terms could be reduced for good behaviour. Despite the unpopularity of
remission in England, Canadian policy makers saw it as a means to improve
prison discipline. Up to one-sixth of an offender's sentence could be forgiven
each month with good behaviour. Irrespective of one's views on the usefulness
of including remission in determining actual time served in custody, the long term
significance of this new approach was to add yet another layer of complexity to
the sentencing process. The Canadian Sentencing Commission observed that
with the Penitentiary Act, "The Canadian penal system was now stratified with at
least four layers of diverging penal philosophies: the Auburn Congregate system, the Philadelphia Separate system, English disciplinarian movement, and lrish
principles of reward" (Canadian Sentencing Commission, 1987: 31 ). Divergence of these four layers is the real problem for organizing any coherent sentencing
principles both then and now, as will be discussed in a subsequent section in this chapter. Before moving to that particular issue, it is necessary to consider in some detail the Canadian Criminal Code (1892) and its impact on the 2oth century. 3.1 .I Sentencing principles after the Criminal Code (1892)
The direct intellectual history of the Canadian Code can be traced directly
to three English documents from 1879-1881, but overwhelmingly the influence
stems from the English Consolidation of 1861. As discussed in the previous
section, Greaves' 1861 Consolidation served, almost verbatim, as the Canadian
Consolidation Acts of 1869. There were three additional formally published
efforts at building on Greave's consolidation, including James Fitzjames
Stephen's Draft Code (1879), which in turn informed the Commissioner's Drafl
Code later in the same year. The English Draft Code of 1881 was the last
significant influence on the Canadian Code, despite its never being formally
enacted in England. Penal structures, in essence, were already in place in
Canada in 1869, leading the Canadian Sentencing Commission to reflect over a
century later that "the Code merely gave form rather than substance to the
existing criminal law" (1987: 32). Again, as with the Dominion's nearly complete
cribbing of the 1861 consolidation, the 1892 Code did have its adaptations. The first of these was the abandonment of handling cases based on a (normative) value judgment of the case's seriousness in terms of felonies or misdemeanours and replacement with our current divisions between indictable offences and summary conviction^.^ While the Canadian Code is more of a continuation of nearly a half century of adjustments based on the promise of developments in
England and Wales, it remains a significant capstone in the history of our nation's current sentencing policy. Indeed, in terms of sentencing, the 1892 Code
Note that such a distinction still permitted hybrid offences, whereby the Crown could nominate the offence as either summary or indictable. outlined the different degrees of punishment available to the court, and that the
judiciary had the discretion to determine the appropriate sentence in each case
(s. 932, now embodied in s.718.3(1)). Further, s.932 of the 1892 Code provided
for consecutive sentences (now s.718.3(4)). Sentences without specified penalty
were set to five years (s.954, now s.743), and capital punishment was reduced to
instances of murder (s.231) and treason (s.65), while being available for rape
(s.267). Currently, murder (s. 235(1)) and treason (s.47(1)) have life as their
maxima, and sexual assault (s.271(1)) up to ten years providing no weapon is
used.
At the turn of the twentieth century, the rationale behind the Criminal Code
was first and foremost a proclamation of support for a deterrence model.
Stephens, whose Draft Code helped frame the 1892 code, was clear in his
support for the law to regulate the "passion" of revenge; indeed, "vengeance
affects and ought to affect the amount of punishment" (cited in Canadian
Sentencing Commission, 1987: 33, n.44). Preference for punishment and
revenge was of course not new to the Dominion. The Kingston Penitentiary, after
all, was founded upon a mix of solitary confinement, of the separate system and
carefully arranged unpleasant living conditions. While reformation of character,
in part at least, was intended to occur through the careful searching of one's offending soul, penance would appear the more direct objective, with the added benefit of those serving time proselytizing upon their release against others following a similar path (Beattie, 1977). While not a theme traced here, several legal scholars have noted the theatrical aspect of officially sanctioned punishment as the climax of an on-going morality play (Friedman, 1999).' Such lines of thinking help underscore the importance of the general audience in penalty; without the general public being made aware of (or instructed in) the consequences of contravening the law of the land, the social control function of any justice system is likely rendered ineffectual. This is of course the familiar argument for deterrence, specifically general deterrence.
In summary, the Criminal Code of 1892 reaffirmed the general impetus from government officials to follow the model of justice offered in England and
Wales, first established in the early part of the nineteenth-century. At every turn, first as the provinces of Upper and Lower Canada, later as the United Provinces, and then as the Dominion, Canadian criminal procedures were incorporated with relatively little need for adaptations for the local context. These early pieces of legislation set the stage for a minimalist contribution from the judiciary to influence court procedures or guidelines. Government legislators then, as they appear to be in our time, were unwilling to become directly involved with giving particular instructions or specific guidelines for the critical process of sentencing offenders in criminal court. At the same time, Courts of Appeal have also been separated from influencing sentence guidelines (Canadian Sentencing
Commission, 1987: 34). The next section traces these themes through the twentieth century.
Friedman's essay is arguably the best summary of this rich tradition of scholarship written by and for a social science audience. Historians have seized upon this area as well, notably Douglas Hay's contribution to his edited collection, Albion's Fatal Tree, and Langbein's equally important response: (Hay, 1975; Langbein, 1983). 3.1.2 Key developments in Canadian courts since 1892
This section is necessarily a partial picture of over a century of legislative
changes in Canada. Instead of cataloguing this history, the focal points are the
key changes to legislation affecting sentencing in the Criminal Courts. Specific
events, considered in their proper socio-political context, are certainly important,
but this social history cannot be completed in the confines of the present
discussion. Comprehensive histories of sentencing revisions for this period can
be found in Friedland (1984; 1988).
In terms of sentencing, a number of changes began to take shape in the
1920s, although some issues such as probation have official precedents to the previous century, these are more recognizable to the modern reader after 1921.
While the 1892 Code permitted appeals of conviction, it was not possible to appeal the sentence itself until 1921. The year 1927 saw the introduction of the suspension of sentence (Canadian Sentencing Commission, 1987). It is important to remind the reader that this is a suspension of the sentencing process itself-and not of an actual sentence order (Nadin-Davis, 1982: 440).
The Canadian Sentencing Commission's Report (1987) suggests that although these changes are significant in their own way, when considered against the
1892 Code, they amount to refinements of an existing structure rather than true innovations. The first substantial change since 1892 was the implementation of full
parole in 1958." The Parole Act repealed the 1899 Ticket of Leave Act, which
allowed prisoners upon order of the Governor-in-Council to be released with or
without conditions. Prior to the Parole Act, there was no systematic process for
eligibility or what form the conditions might take including various forms of police
surveillance, or orders to avoid "notoriously bad characters" or places (Cole &
Manson, 1990: 165). The Act also brought in the first Parole Board, and along
with it, increased systematization of parole management from case workers to
more predictable conditions and monitoring (Cole & Manson, 1990: 170).
The second significant change since the 1892 Code came in 1972, with amendments allowing the court to discharge cases. Formally, the court could find a person guilty of an offence, but nevertheless choose to discharge the formal conviction. This eliminated the need for the offender to suffer the stigma and legal implications of having a criminal conviction on his or her record (Nadin-
Davis, 1982: 474-5). Discharges take one of two forms: absolute or conditional.
Absolute discharges amount to a complete release of the offender from further involvement with the courts, while the latter are subject to some form of probation order.
One last historical note deserves mention before moving the focus of this discussion to the formal principles of sentencing. In Canada, both public and political sentiment was sufficient to see the abolition of capital punishment in
10 Starting in 1947, a Royal Commission sought to rationalize some punishments, including the preventative detention for habitual offenders. This built upon the 1921 expansion of parole supervision provisions. The Royal Commission reported in 1952, with revisions to the Criminal Code appearing in 1953. 50
1976. While the circumstances of this event are largely symbolic, the 1970s
appear to embody a distinct shift in sentencing policy in Canada. The one
exception to starting the "current" research in the 1970s would be Jaffary's
Sentencing ofAdults in Canada (1963). Due to the truly formative impact of
Jaffary's text, it deserves special consideration in the following section. After
reviewing Jaffary, the discussion turns to the upsurge in research on sentencing
largely sponsored by the Canadian government during the 1970s, and the
ongoing dialogue that this work has engendered through to the present.
Organizationally, the remainder of the chapter will follow two main themes. The
first point of focus is the range of sentencing principles, and to what extent our
current sentencing guidelines allow for their actualization. The second traces the
empirical study of sentencing patterns as a means of reflecting on how well
historical and current sentencing practices, or outcomes, have met the purported
objectives set out in s. 718 of the Criminal Code (R.S. 1985, c. C-46).
3.2 Sentencing in Canada: A Review of current research
This section focuses on the empirical research on sentencing patterns for
Canada as a whole, and BC in particular. In this respect, the present research follows the legal realist tradition, as discussed in Chapter 2. Legal realism is
used to underscore the importance of considering the wider context of sentencing (that is actual patterns and practices). This leads to a notion of
"sentencing complexity1'-something that legal positivism is unable to account for beyond theoretical principles. This argument for complexity also points the way toward the need for a research methodology that can empirically measure 51 observed differences between case flows (and decisions rendered) across different jurisdictions. In a subsequent chapter, charge and decision quotients are introduced as one methodology that is capable of quantifying this complexity.
Given that the Canadian Criminal Code has identified as one of its objectives the reduction of custodial terms unless absolutely necessary in s.718.2(d), there is a critical need for researchers in this field to understand the potential impact of this and future changes to sentencing patterns. This review concludes with an argument that the most pragmatic approach to understanding whether or not sentencing in Canada is following its purported principles is to examine the actual outputs of the sentencing process in one or more jurisdictions.
The first clearly empirical study of sentencing in Canada is Jaffary (1963).
Jaffary reviews data from 1955 along six indictable offence types: assault causing bodily harm, common assault, assault on peace officer, breaking and entering a place, theft, and false pretences. Given his importance as a historical baseline, a detailed review is useful here. Jaffary finds the Canadian rates for suspended sentences (the lightest sentence form) to be approximately 15%, while BC, for the same period, used suspended sentences about half as often
(Jaffary, 1963: see Table 3, p. 34). Probation was used more frequently for property offences than for those against the person, but in BC particularly.
Curiously, in comparison to current standards, fines appear to be well used across all provinces for the 1955 period (36). As will be shown below, the current situation for BC has changed considerably in this respect, while other provinces, such as Alberta, continue to use fines at a higher rate than for other provinces and territories. How this trend breaks down across the eight jurisdictions in this study will be discussed along with the other significant findings. Moreover,
Jaffary finds that it is necessary to distinguish between short jail and penitentiary terms, although he finds the break point to be the familiar two years less a day or two years or more-the same break that currently divides Provincial and Federal custody.
In the 1950s, BC and Ontario made more systematic use of probation and as a result, encountered the need for short sentences less often than other provinces. Penitentiary terms (two years or more) in BC were consistent with the national average. While historical trends are illuminating, perhaps the most important aspect of Jaffary's work for the present study is his attention to the regional variation across what was then the Dominion of Canada; the availability of probation (and here BC has the historical advantage of having operational adult probation programs many years before most other provinces) helps contextualize BC's greater rates of probationary terms. Nova Scotia, and New
Brunswick, to cite two further examples, did not have facilities for probationary terms, and therefore, it would seem likely that greater use of short term jail sentences would be the next best arrangement. However, a more important aspect of regional variation regarding these Maritime Provinces during the 1950s was the disreputable state of provincial jails. When seeking explanations from provincial officials, including Deputy Attorneys General, senior police officers, and social scientists, among others, Jaffary found that provincial institutions in both Nova Scotia and New Brunswick were in such a poor state that judges there were known to be reluctant to sentence anyone to custodial terms for more than
six months (42-3). In fact, comments from the New Brunswick respondents
suggested that lengthier penitentiary terms were thought to be less punitive and
provided the only possibility for the treatment and reformation of the offender
(45).
Jaffary also notes the impact of regional variation in social conditions on
sentencing trends, and suggests that without attentive and systematic empirical
study, such trends can be lost to the practitioner and lay observers alike. One of
Jaffary's Maritime respondents makes an interesting comment regarding a key
source of disparity, the "prevalence of crime generally or the prevalence of a
particular crime in a given locality" (42). Although a seemingly ambiguous
statement, it is actually a rare recognition of simple empirical reality. The blend
of charges before local courts, or for the wider region, is likely to influence both
the type of dispositions and the magnitude of any sanctions imposed. If one local
area or even a region within a given province is saturated with a particular type of crime, and local magistrates subsequently see a lot of traffic in very different types of charges, their scarcity or prevalence may have noticeable impacts on dispositions and quanta alike. This forms the basis of the charge and sentence quotients by jurisdiction methodology employed in Chapter 5. Further to Jaffary's observations on disparity, his observations of the 1955
data reported by Manitoba and Quebec are instructive." Jaffary notes that for
theft, one of most common offence types:
[tlhe sentences for it show a wide variation by provinces. Nationally, suspended sentence is used in 16 per cent of the convictions for theft. Quebec suspends 11 per cent, Manitoba 34 per cent-more than three times the rate of Quebec. Fines for theft show a national rate of 19 per cent. Quebec has a rate of 11 per cent, Manitoba 26 per cent, or more than double that of Quebec. Short jail sentences for theft have a national average of 21 per cent. The Quebec rate is 36 per cent, Manitoba II per cent, or less than one-third the rate of Quebec. Penitentiary sentences for theft have a national rate of 5 per cent. The rate in Quebec is 10 per cent, in Manitoba 2 per cent, or one-fifth the rate in Quebec. These wide variations in sentencing for a common offence ...raise a number of important questions for the administration of criminal justice in Canada. (40)
These questions strike at the core of the criminal justice system: how can such disparity persist while hoping to maintain community "respect for the law and the maintenance of a just, peaceful and safe society"? (s.718 C.C.). This after all, is one of the express considerations of the Criminal Code, as will be discussed in the next chapter. People will naturally compare their experiences with others, and this is certainly true of persons sentenced by a court. Offenders under sentence in a federal or provincial institution will be aware of others receiving dissimilar sentences for what he or she perceives to be largely similar offences. Wide disparity encourages resentment and detracts from an offender's willingness to participate in his or her rehabilitation with any sincerity. If the
11 Quebec, and to a lesser extent, Manitoba, have had an inconsistent history of reporting data to the Adult Criminal Court survey for the last half of the twentieth century. Partly because of these periods of non-reporting, but mostly due to subtle differences in the nature of the reported data itself, Quebec sentencing patterns are best analyzed separately, or perhaps as a specific point of comparison with other jurisdictions. offender perceives that the courts or the wider justice system have failed him or
her, in a concrete sense the system will have failed that individual and the scars
of that failure will follow him or her into the community (Jaffary, 1963: 47). While
it does not follow that unhappy clients of our jails and penitentiaries will
necessarily hasten to offend anew, this process may threaten the protection of
the public (S. 718, C.C.), in that resentful and non-rehabilitated persons are
released back into their former communities (Culhane, 1991).
The next key study of sentencing in Canada is Hogarth's Sentencing as a
human process (1971 ). Hogarth reviews judicial decision-making principles and
practices in his classic study of Ontario judges, finding that sentencing outcomes
have more to do with the characteristics of those on the bench and in the docket
(as his title suggests), rather than the objective facts for sentence (163-4; 382).
Hogarth sets up two competing schema of decision-making, based on interviews and a study of case law. Here we find his familiar depiction of the phenomenological versus the "black box" model. Briefly, the "black box" model suggests an entirely factual case model of judicial decision-making. In this view, judicial bias, or personal philosophies of law are not operative, but rather, the pure rule of law dictates sentencing outcome. The phenomenological model takes both the so-called objective facts of the case, and legal principles which guide in their application, and considers each as deeply imbued with social meaning. Judging is inherently a social act, much in the same way as suggested by Jaffary when he states "trial is legal in nature.... Disposition is a more social action; the few brief words of the sentence may determine a man's future. And 56
tied to his future are the future of his family and the safety of the community. No
action could be more social or more fraught with human consequences" (1963:
v). Hogarth (1971) finds the phenomenological model accounted for
approximately half of the variation in the type and quanta of any terms or orders
(382). The black box model, on the other hand, could only account for less than
ten per cent of variation (382).
As Hogarth is still primarily concerned with the process of decision-
making, much of his work is occupied with discussion of the relative merits of the traditional justifications made by and on behalf of sentencing researchers.
During Hogarth's era and at present, classical deterrence as a sentencing objective has been found lacking reliable empirical evidence (Andrew Von
Hirsch, Bottoms, Burney, & Wikstrom, 1999). In spite of this lack of evidence, this approach continues to influence many magistrates, and, more especially, those involved with penning the leg is la ti or^ guiding them. The judiciary's survey responses and Hogarth's attending review of the case law suggest that while some may support deterrence, most find overt punishment and incapacitation to have no part in the law, and are outside the purpose of the Code. Reformation and treatment are given more positive reviews, although again, empirical evidence is modest at best (Hogarth, 1971: 70-4).
In addition to the focus on sentencing as a necessarily human (social) process, Hogarth, in conjunction with Jaffary (1963) argues that geographic differences are accompanied by differences in sentencing philosophies as well.
Part of this difference is likely attributable to the judiciary's interest in increasing the use of community-based sentences and orders (Hogarth, 1971: 167). As
already discussed, the availability of resources can weigh heavily on the
sentencing court (Jaffary, 1963). Hogarth notes in his Ontario data, that "[tlhe
attitudes of magistrates appear to be those most appropriate to the problems
they face in their local community" (1971: 220). The key distinction in such views
runs along urban-rural lines, with urban magistrates attaching less importance to
reformation and more to deterrence and retribution than their rural counterparts
(Hogarth, 1971: 220). The mixture of cases before courts located in communities
"characterized by a high degree of urbanization, a high crime rate, and a highly mixed ethnic composition, comprised by many recent immigrants'' tends to be associated with magistrates who saw their function as more traditional in the sense that the law meted out justice and prevented crime through a mixture of individual and general deterrence (Hogarth, 1971: 218). Hogarth suggests two main reasons for the urban-rural divide. First, the urban courts are significantly busier than its rural counterpart. Perhaps, due in part, to the workload for urban magistrates, most magistrates feel that the more prestigious courts are found in the smaller communities where magistrates would be a known (and influential) member of the social elite. While this may have been true in the 1970s, the opposite seems to be true in recent years. Hogarth notes as well, smaller jurisdictions seem to support a more rehabilitative model of justice, perhaps also allowing for magistrates to be more in touch with the prospects for offenders successfully serving terms within the community. While Hogarth's data seem to support a view of a more punitive urban court, and a more socially aware and rehabilitation-oriented rural court, the data in the present study suggest that these roles have, to some extent at least, become reversed. Nevertheless, the need to consider rural and urban settings when studying sentencing patterns seems advisable, but particularly at regular intervals, as it would appear such trends are likely to change over time.
Both Jaffary and Hogarth are among the first to call for increased collection, analyses and dissemination of sentencing trend data for Canada, with similar calls being made by others (particularly P. J. Brantingham & Kress, 1979;
Nadin-Davis, 1982; Verdun-Jones & Mitchell-Banks, 1988). Early efforts at collecting sentencing outcomes were hampered by limitations of the scope and nature of the data collected by the various courts' records holdings, and the limitations of micro computing for researchers and government archivists alike.
Nevertheless, the 1970s and the 1980s found a surge in formal interest in the empirical picture of sentencing in Canada, although, of course, sentencing as decision-making and attending debates of jurisprudential philosophy continued to dominate the literature. Reviews of case llaw and appellate court decisions are of course the mainstays of these decision-making studies. One of the classic treatments in tackling decision-making in Canadian courts is Clayton Ruby's
Sentencing (1980).12 Although Ruby's work is examined in more detail in a subsequent section in this chapter dealing with the principles of sentencing, it is noteworthy that he finds "[slentencing in Canada, according to case law,
'*Ruby's first edition of was published in 1976, although this text makes use of the second, with minor adjustments and updates. The sixth edition (2004) is now available. 59 combines a strange liaison of both the moral and the utilitarian positions" with little observable consistency. In this respect, Ruby and Hogarth, with their phenomenological views of sentencing, share common ground.'3 The early part of the 1970s saw a more concentrated effort on behalf of the Canadian government to collect input on sentencing practices. Towards this end,
Parliament established the Law Reform Commission, and it, along with the
Canadian Sentencing Commission, set the stage for a new generation of scholarship.
From 1974-6, the Law Reform Commission produced several reports.
Three focusing on sentencing are discussed here. Despite the detailed, generally well received work of this commission, Roberts (1998: 424) notes that
Canada did not seem to have the necessary political interest to address sentencing changes until the mid-to-late 1980s with creation of the Canadian
Sentencing Commission. The Sentencing Commission produced a surge in materials, starting in 1987 with the main Report (Sentencing reform: A Canadian approach) and a number of subsequent papers the following year. The combined efforts of the Law Reform and Sentencing Commissions provide the starting point nearly all subsequent research on sentencing in Canada. The next section traces the substantive developmerits of the Law Reform and Sentencing
Commissions
l3The current reader will, no doubt, see that the phenomenological view of sentencing, its necessary bias and subjectivity, remains a viable interpretation. A more recent view supporting the subjectivity of the sentencing process is examined in (1986) Others, however, as will be shown below, disagree with this observation, finding instead a degree of consistency, at least in terms of individual decision-makers (P. L. Brantingham, 1985; Nadin-Davis, 1982). 3.2.1 The Law Reform Commission and Sentencing Commissions (1974- 1988)
In 1974, the Law Reform Commission produced a working paper entitled
Studies on sentencing, which outlined a sentencing rationale that purported to
accommodate both deterrence and rehabilitation but with limitations. The
criminal law, and any sanctions or interventions on its behalf, according to the
Commission, should be based on "the common good and the sense of justice
which demands that a specific wrong be righted" (Law Reform Commission of
Canada, 1974). The Commission finds that humane principles should infuse
sentencing policy and practice, and that in the absence of any evidence that
treatment programs reduce recidivism, "it would be unwise to base sentencing
policy on rehabilitation and treatment" (8). If treatment as a main policy is
untenable, what are the implications for its classical alternative, deterrence? As with treatment, support is less than universally accepted; there is no evidence to support the tenet that lengthier sentences reduce recidivism, or at best, appear
no more effective reducing repeat offending than shorter sentences. A further objection to increasing sentence terms stems from the possibility that longer terms promote rather than deter recidivism. For these reasons, the Commission argues, sentencing has to take seriously those specific practices that it can take, and to discontinue advancing vague support for equally vague notions of deterrence or rehabilitation.
In response to these practical limitations and criticisms the report advocated diversion for less serious cases. Through diversion, the criminal courts could pass on cases that could be handled systematically elsewhere- such as family or civil courts-and thereby avail itself of the time and resources
necessary to handle the more serious criminal cases. Such practices would
facilitate expeditious handling of these more serious criminal cases, and perhaps
allow justice to be done with more certainty and celerity much in the way
Bentham would have had it. Additionally, diversion supports the reality of case
complexity, especially with respect to the individual needs of victims and
offenders (20-1). Mediation, reconciliation, restoration and perhaps even
rehabilitation could be supported by the humane treatment of offenders and
solidifying their attachment to the wider community (1 1). The development of this attachment, the Commission found, should take place through the avoidance of custodial terms save in the most serious cases, and the use of probation and efforts at educating offenders of their need to participate in the common good
(32).
Interestingly, the Law Reform Commission did not see disparity in sentence length as particularly problematic-at least not at this point in Canada's sentencing history. What was more important than focusing on the discrete lengths of prison terms is that the principles guiding determinations be applied evenly. Disparity "is a concern to the extent that [it] arises out of a failure to follow common principles. The solution does not lie in taking all discretion away from prosecutors, judges or parole personnel but rather in channelling and structuring discretion through a statutory statement of principles, purposes, standards and criteria" (Law Reform Comrnission of Canada, 1974: 33). This admonition to look towards developing sentencing guidelines and policies to apply them has been repeated consistently throughout the literature since that time. Whatever the reasons for the apparent lack of response to this call, it is humbling to social science researchers to note that it took nearly 20 years for this last aspect to be addressed in legislative terms. The most recent major amendment (1996) to the Criminal Code regarding sentencing (s.718), as discussed below, is at least one step toward a viable sentencing policy, although its effectiveness is certainly open to debate.14
The next developments followed shortly after the 1974 Law Reform
Commission reports. In 1976, the Commission released A report on dispositions and sentences in the criminal process: Guidelines. Intended as a summary of the Commission's work to that date, it shares the findings of the 1974 document, including the principle of minimal use of custody, increased education and understanding of actual sentencing practices and adherence to a formal, national sentencing policy. This shared ground notwithstanding, the 1976 report is notable for its focus on providing recommendations and suggested practical steps in aid of their achievement. The Commission sees sentencing as part of a system of decisions made by agents before trial, such as individual citizens bringing a situation to the attention of the police, the police decision to move forward with a particular case to either charge or recommend charges to Crown
Counsel. Many things can happen prior to the actual disposition, including formal or informal plea negotiations or the preparation and presenting of pre-sentence reports to the court. The sentencing stage of this system has received the most
14 See Roberts' comments on Bill C-90 (House of Commons (Canada), 1993) Here, Roberts argues forcefully that the Bill did not go far enough to provide direction to our judiciary. study, and includes the sentencing judge's decision and potentially those of
others in the case of an appeal. The process does not stop at this point,
however, but continues for those sentenced to custody, probation or a range of
court orders. Correctional staff, and more overtly, parole officers, have much to
say regarding how much of the sentenced terms are actually served or in what
capacity. All of these stages involve substantial discretion, and quite naturally,
this can lead to disparity: "differences in dealing with crime may legitimately
reflect the variety of cultural and social conditions in the country; but they may
also reflect differences in basic assumptions concerning aims, purposes and
limitations of the criminal law and its processes" (Law Reform Commission of
Canada, 197613: 7).
The Law Reform Commission, although one of the first to point out the
impact of what others have described as the "funnel" of crime Brantingham and
Brantingham (1984), stresses the need for empirical study of dispositions so that it would be possible to separate out simple regional variation in type and quanta of sentences and the more unsettling issue of variation in application of sentencing principles themselves. Systematic study will help address the
"confusion both by individuals and agencies in this process concerning their roles and mutual expectations" (Law Reform Commission of Canada, l976b: 7). This call for a systematic strategy for data collection and dissemination in support of sentencing in Canada is an echo of Hogarth's earlier work (1971), but cast as it is in a governmental report, its message to parliament could not have been missed, as may be the case in more overtly academic study. The report is clear in its view of the quality of the data any party might wish to examine to guide his or her decisions in the sentencing process: "The state of statistics and information on the nature of crime and the administration of justice in Canada is simply deplorable" (Law Reform Commission of Canada, 1976b: 52). The lack of information as even an informal guide precludes any hope of sentences following any but the most vague guidelines or policies. Without information about other jurisdictions' use of a particular disposition, or sentencing condition, it would seem unrealistic to expect uniformity across the province, let alone the nation.
The public, legislators, administrators and judges are largely at the mercy of hunches in assessing the total picture of crime, and are forced to rely on their own personal or work experience. There are a number of myths and misunderstandings in areas such as bail, leniency in sentencing and release on parole. Even where data are available they are not published in a form or with sufficient speed to check assumptions, mitigate exaggerations, or even more important, indicate pressure points and identify reasons for crises. (Law Refo~rmCommission of Canada, l976b: 52)
Notwithstanding the difficulties of obtaining the necessary data and the technological limitations of the time, the Law Reform Commission provided a look at dispositions and sentencing outcomes for a sizeable group of more than 2,000 first time offenders entering the justice system in September of 1967, tracing their criminal careers through until 1974 (Law Reform Commission of Canada, 1976~).
Referred to as the "September study", the document found that although the most common dispositions (suspended sentence and probation) were non- custodial in nature, only one-quarter of these novice offenders were seen a second time over the course of the five year study period (Law Reform
Commission of Canada, 1976c: 45-6). The "September study" provides an excellent early example of how data can be used to understand the nature of sentencing decisions and their actual impact. Simply collecting and analyzing data is not, however, a complete solution to removing ambiguity from Canada's sentencing policy. Such data and the messages stemming from their analysis need to fit into a comprehensive system of education for everyone involved in the justice system, from the offenders through to the judiciary.
The key to avoiding the potential confusions at the policy level, the
Commission suggests, lies in clarification of the intent of criminal law. This would entail a formal set of statements outlining the legal situations in which the criminal court could intervene. The primary purpose of the criminal law is to provide a systematic denunciation of violations of the core values of society.
Furthermore, such denunciations should only be brought to bear on the most serious of cases, for which the gravity of the harm done was so contrary to the promulgation of these core values that some form of sanction or penalty is merited. In all cases, however, such interventions should, as their necessity springs from the expression of, on behalf of society, repudiation of the criminal act, and not for mere punishment or simple deterrence alone, limit the use of jail and or prison-as mentioned in the 1974 report. Often, the process of the laying of the charge or charges is sufficient to put the message of denunciation forward to the offender (Law Reform Commission of Canada, 1976b: 8-9). Sentences should also instruct the offender as to his or her transgressions, and seek to maximize the potential for the offender to understand the nature of the wrong committed and to facilitate some form of remedy or restitution. Offenders and victims are not separate entities, and must be understood to be a part of the wider community. In this sense, justice serves the wider good of the community and the nation (Law Reform Commission of Canada, 1976a, 1976b: 8-9).
To begin to provide pragmatic solutions, the Law Reform Commission called for the creation of a research body that collected and disseminated criminal justice data.'= From this base, the implementation and impact of general policies, or guidelines, could be monitored for "pressure points" (Law Reform
Commission of Canada, 1976b: 52). To be in a position to take advantage of this research body required that those involved with sentencing have the opportunity to examine either the raw data themselves, or to have the resources to conduct direct study into areas of interest or concern. Ideally, such an information system would, in effect, allow officials, especially judges and corrections, to self-calibrate their expectations of the system around them, and their function within it. Lofty ideals to be sure, but the burden of creating and maintaining court data was not intended for parliament alone, although the Commission clearly saw this as the authoritative body which could direct these efforts (51).16
The Commission recommends that the universities and other academic institutions should also play a role in the development and training of justice professionals, and especially, to support the education of our citizenry in the consequences of crime (Law Reform Commission of Canada, 1976b: 57). l5In 1981, Statistics Canada created the Canadian Centre for Justice Statistics (CCJS) which provides much of the functionality called for in the 1976 report. Regional justice data collection programs, such as "JUSTIN" of the Court Services Branch in British Columbia, report to the CCJS. l6"We hope and urge that the Parliament of Canada will provide for coordination and initiative of the many efforts necessary, some of which are already in the process of implementation" (1976: 51-2). Judges, attorneys and correctional administrators should all be granted the time
"to familiarize themselves with changing conditions and practices in making dispositions and imposing sentences" (1W6b: 53, 56). Part of this education also demands an awareness of the resources in the communities where the offender will be released, either after custody or as a service order or condition.
While the Law Reform recommendations discussed so far support a general approach to a systematic, federally imbued system of justice, the
Commission did include a number of specific recommendations for administrative and procedural changes. The court, the Commission noted, should have access to its own service for following up on sentences served in the community, and returning anyone found lacking in their performance of their court orders for further sentencing. Perhaps the most notable recommendation was the abolishment of the National Parole Board (NPB), in favour of a Sentence
Supervision Board (SSB), of which its members would be appointed by the
Governor General in Council on a regional basis (Law Reform Commission of
Canada, 1976b: 58-9). Under the proposed SSB, members would be involved at an earlier stage in assisting with the determination of the length of any sentences of separation from the community. In keeping with the theme of involving the community, Citizens' Justice Councils should be established (61). To reduce the informal nature of existing discretion within the justice system, police and prosecutors were seen as needing to formalize the pre-trial negotiations and to make a full report of any agreements to the court. This would also provide the acknowledgement of discretion exercised on behalf of the Crown in pursuing cases. Police would also have to provide a similar report of their discretion to the
Crown (61-2). In the case of accused making an appearance in court, the judge
should be involved in all but the most straightforward decisions to discontinue
proceedings (62).
With respect to sentences themselves, the Commission makes a number
of recommendations. Restitution and compensation orders, as part of an
increased focus on the victim, should be separated from other sentences, rather
than as an additional aspect that may or may not be attached (64). Furthermore,
the Commission suggests that the "day-fine"17 be implemented, and should be
available in all cases (65). Sentences involving imprisonment should be used as
"a last resort when no other sentence is appropriate" and when used, legislation
must "[plrovide that imprisonment should be imposed only to achieve one of the
following three objectives: (a) separation of the offender for the protection of
society; (b) denunciation of a highly reprehensible behaviour; (c) penalizing those
who have wilfully refused to comply with the conditions of other sentences" (65).
In order to provide an assurance that these principles are being attended to,
legislation should specify that the court or some other body "has jurisdiction to
supervise and review the sentence and the power to decide matters relating to
leaves of absence and variations in levels of restriction" (65-6). In support of this
monitoring of sentences, the legislation should: "require the court to give reasons for imposing a sentence of imprisonment", and abolish minimum prison sentences, preventive detention, and statutory remission (66).
17 The concept of the "day-fine", as adapted from Europe, involves portioning out a fine that was dependant upon the financial means of the accused. Thus, each fine would be equivalent to the person, and would fluctuate in calibration with the individual's financial means. In sum, the Law Reform Commission's 1976 report is certainly an
ambitious effort, but a number of recommendations (such as the replacement of
the National Parole Board with a Sentencing Supervision Board) were largely
ignored. However, its effort to provide a level of determinacy for general
sentencing principles rather than in individual dispositions is carried forward in
subsequent research, both from government and academic researchers alike. In
continuance of this chapter's history of sentencing research, the next truly
seminal piece comes in the form of the Sentencing Commission report of 1987.
Following on the heels of the Law Reform reports (1974; l976a; 1976b;
1976c) the Canadian government began, in 1981, the Criminal Law Review
process, with specific attention to sentencing starting the following year (Canada,
1984). The 1984 document is offered as the Canadian government's position on sentencing policy, although it is largely a review of the earlier Law Reform
reports. It remains, however, a highly readable summary, and it outlines the scope of responsibilities for the Canadian Sentencing Commission.
The Commission's report, Sentencing Reform (1987), finds the lack of a formal, directive, sentencing policy to be a conscious omission on behalf of
Parliament and the Government of Canada. Parliament, the Commission argues, has deliberately avoided becoming involved with sentencing. In support of this claim, the Commission argues that one only has to look at other efforts at federal legislation, such as that of personal income tax to see the enormity of this discrepancy. If the level of specificity of criminal sanctions were to be translated into the area of income tax, it would be as if Parliament were to pass a tax bill indicating that certain kinds of income were to be taxed at a rate 'of up to 34%' to accomplish goals that were never specified. Courts, then, on an individual basis, would be expected to weigh such factors as the impact on individual incentive, job creation and the taxpayer's ability to pay, to come up with a set of individual cases from which general principles might be derived. Courts would make decisions independent of one another and there would be no mechanism for resolving differences across provinces. Indeed, individual provinces might differ on which factors would be relevant in determining the amount of federal income taxes must be paid. (Canadian Sentencing Commission, 1987: 52)
The reasons cited for lack of legislative direction in the area of criminal law stem from a lack of concern for this aspect of law being a priority. Taxation has obvious benefits to government and involves everyone-at least as a matter of policy, if not in actual terms-whereas the criminal law is widely regarded by the general public as affecting relatively few individuals. Public opinion research
(Roberts, 1988b) suggests that to the extent that the criminal law, and sentencing in particular, is considered, it is consistently seen as erring on the side of leniency. It would seem that a policy of non-intervention would be the most prudent political course, as being seen to be soft on crime would be dangerous to the popularity of any government. Regardless of the political strategy behind the lack of political direction, it is clear that repeated calls for sentencing guidelines have been ignored (Roberts, 1990a). The remainder of the report is an effort to provide such direction, and to repeat the Law Reform Commission's urge that
Parliament take the initiative to provide formal principles and guidelines.
As pointed out in the Law Reform reports of the mid-70s, concerns about disparity and lack of adequate information for sentencing authorities persist into the next decade. Some quarters defend the existing disparity as a proper balance of regional variation. The Canadian Bar Association suggests that
"some variation in sentencing is to be expected. Without it, sentencing practices would not reflect differences in individual cases and community standards or regional priorities or concerns" (Canadian Sentencing Commission, 1987: 55).
Although this is the formal position of the Bar, a survey of over 700 Crown and defence counsel found that over 80% of respondents saw "unwarranted disparity" locally and 90% found "unwarranted disparity across Canada" (Canadian
Sentencing Commission, 1987: 56).18 Leaving aside the issue of just what
"unwarranted" disparity might be, it is clear that the majority of practitioners are not convinced that the system is not functioning as well as it might. Evidence such as this can be viewed as supporting the suggestion that disparity is essentially a problem of confused and unequal application of principles rather than practices at the individual level where "disparity due to differential assessments of similar 'facts' is a less immediate problem than lack of consensus of what should be assessed in the first place" (72).19
In addition to inequities due to a lack of sentencing guidelines, the
Sentencing Commission has a number of concerns with the structure of sentencing. The Criminal Code-then and now-sets out sentence maxima.
The idea of defining a sentence with reference to its most severe form does allow
"See the original report, Canadian Sentencing Commission, Research #5, Survey of Crown and defense counsel: Final report. Ottawa, 1986. l9Disparity can take on three forms: case to case, judge to judge, and court to court. In the context of this research, the latter form will occupy the bulk of the discussion. How "case to case" variation can take shape in the specific context of marihuana cultivation and related offences are discussed in a separate chapter. Judge to judge variation is not examined here as appropriate data were not available. flexibility in setting out sentence terms, particularly for those calling for custody
(or separation). However, such guidance provides no direction for the vast
majority of cases, and nor does it indicate what type of sentence, or combination
of terms can or should be applied. This limitation is related to a further concern, that of consistency and predictability, both from professional and lay perspectives alike. The public expectations are only further dissociated from any likely outcome with the suggestion that the maximum sentence for this, or that type of charge, if found guilty, is x. Empirical research has consistently demonstrated that maxima are hardly ever used, and that the majority of sentences are well below this level (Barnard, Tennenhouse, R Krasnick, 1976; Douglas & Ogloff,
1997; Roberts, 1988a, 1990b; Roberts & Birkenmayer, 1997; Vining & Dean,
As with previous government and commission reports, Sentencing reform contains a statement of recommendations, but unlike previous work, notably the
Law Reform Commission, it contains a great deal of fully developed guidelines as well. In terms of basic principles, the Commission sets out five main recommendations, and as these serve as review for the previous thirty years of sentencing commentary, and a good deal of what is central to the current debate, they are quoted here verbatim and in full (1987: xxviii-xxix).
Sentences would be more proportionate: sentences have to be proportionate to the gravity of the offence and the responsibility of the offender. Violent offences which result in serious harm to persons would attract the longest custodial sentences. Offences against property and other less serious offences would attract lighter sanctions and to the greatest extent possible sanctions which do not involve incarceration. Sentences would be more equitable: the severity of the sanction would be determined by a more explicit set of principles, so that offenders being sentenced for similar offences committed in similar circumstances would receive similar sentences. Sentences would be more understandable: the length of a sentence of imprisonment imposed in court would be considerably closer than at present to the length of time actually spent in custody by an offender. Sentences would be more predictable: the offender, the victim and the informed public should have a better idea of what the sentences would likely be. Sentences of incarceration would be used with restraint: as a result of the development of principles to govern the determination of sentences, it is expected that frequently voiced concerns about the over-use of incarceration will be effectively addressed.
Such recommendations would not impede judicial discretion in their
determination of sentences, nor would they impede adjustments for individual and regional circumstances. The recommendations seek process changes,
rather than individual constraints, reviews of individual decisions, and so forth
Specifically, the proposed reforms include (1987: xxix-xxx, verbatim):
A new rationale for sentencing; Elimination of all mandatory minimum penalties (other than for murder and high treason); Replacement of the current penalty structure for all offences other than murder and high treason with a structure of maxim of 12 years, 9 years, 6 years, 3 years, 1 year or 6 months. In exceptional cases, for the most serious offences which carry a maximum sentence of either 12 or 9 years, provision is made to exceed these maxima; Elimination of full parole release (other than for sentences of life imprisonment); Provision for a reduction of time served for those inmates who display good behaviour while in prison. The portion that can be remitted would be reduced from one-third to one-quarter of the sentence imposed; An increase in the use of community sanctions. The Commission recommends greater use of sanctions which do not imply incarceration (e.g. community service orders, compensation to the victim or the community and also fines, which do not involve any segregation of the offender from the community); Elimination of "automatic" imprisonment for fine default to reduce the likelihood that a person who cannot pay a fine will go to jail; Creation of a presumption for each offence respecting whether a person should normally be incarcerated or not. The judge could depart from the presumption by providing reasons for the departure; Creation of a "presumptive range" for each offence normally requiring incarceration (again the judge could depart by providing reasons) and; Creation of a permanent sentencing commission to complete the development of guideline ranges for all offences, to collect and distribute information about current sentencing practice, and to review, and, in appropriate cases, to modify (with the assent of the House of Commons) the presumptive sentences in light of current practice and appellate decisions. Sentencing principles, in this framework, focus on moving the offender to
a position of accepting accountability for his or her actions, rather than
punishment, or even simple separation. With this new focus, determining
sentence quanta would, in principle, avoid sentences that were intended to speak
to punishment, or the indeterminate terms required of sentences offered in aid of
rehabilitation. In effect, imprisonment would be minimized wherever possible.
The Commission's Sentencing Reform, although well received as a
coherent attempt at providing genuine guidelines and reforms, suffered the fate
of previous efforts: legislative inattention and inaction. Roberts (1998) observes
that despite the optimism of those working at sentencing reform given the Law
Reform and Sentencing Commission reports, true reform would have to wait until
the mid 1990s. The Law Reform Commission's "hope and urge that Parliament
of Canada will provide for coordination and initiative" (Law Reform Commission
of Canada, 1976b: 51) would have to await the 1991 enactment of the Criminal
Justice Act in England and Wales (Roberts, 1998: 424). Arguably the Daubney
report (Department of Justice and Solicitor General, 1988) was the most
influential factor in the Department of Justice rejecting the guidelines
recommendation of the Sentencing Commission and accepting instead a set of
principles.
3.2.2 Principles of sentencing & the new Code
Even with the Criminal Justice Act, Canada moved slowly in developing a
plan, and even this effort, beginning to take shape in the mid 1990s, fell dramatically short on providing true guidelines (Roberts, 1998: 424-5). The summer of 1995 saw the introduction of Bill C-4120, which brought in the
purposes and principles of sentencing [s.718 C.C.], the most significant change
since the instillation of the Canadian Sentencing Commission in the early 1980s.
Proclaimed in September of the following year, the substantive matter of the Bill
went partway in addressing nearly thirty years of calls for sentencing guidelines.
Roberts felt strongly that the proposed Bill simply did not go far enough; instead,
it admonished judges to be fair-a singularly unhelpful instruction-and it missed
an excellent opportunity to guide them instead on how aggregating or mitigating
factors, for example, might inform a proportionate sentence (House of Commons
(Canada), 1993). Nevertheless, the enactment of Bill C-41 did introduce a new
disposition, the conditional sentence, as a part of a new structure for reducing
incarceration. In an effort to denounce serious crimes against the person, four
year minimum terms were set for offences involving use of fire arms.
The consistent complaint critics raise is a lack of a consistent sentencing
philosophy. Section 718 is, at the time of writing, the current, definitive statement
of purpose. However, s.718 suggests a statement that is more directed at
minimizing political risk than providing practical guidance. Specifically, s.718
reads:
20 Bill C-41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, R.S.C. 1995, c.22, s.6 is available at URL: http:lllaws.justice.gc.calenll995122Itext.htrnl [accessed May 22,20051. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (0 to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
All the familiar themes are present2'; they are, in order: denunciation, deterrence, separation and incapacitation, rehabilitation, community and or victim reparation, offender responsibility. Rehabilitation, deterrence, and separation are not only three distinct but typically incongruent objectives; with the s.718 suggestion that sanctions should address "one or more" of them is so weak that it avoids giving any guidance at all.
21 Sentencing case law provides the backdrop for these principles, see for example: R. v. Fallofield (1973), 22 CRNS 342 (BCCA), R. v. Willaert (1953), 105 CCC 172 (OntCA). 718.2 A court that imposes a sentence shall also take into consideration the following principles: 0) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor, evidence that the offender, in committing the offence, abused the offender's spouse or child, or evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim
shall be deemed to be aggravating circumstances;
(ii) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (iii) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (iv) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and ......
Listed as a "fundamental purpose" of sentencing, s.718.1 provides that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Section 718.2, above, outlines the "other principles" that are to guide the adjudication of offenders.
Although aggravating conditions are mentioned, the extent of this recommendation adds little to what a sentencing judge might do to account for any of these circumstances. Section 718.2(b) and (c) essentially amounts to a call for the sentencing process to be fair and humane. Certainly a positive aspect for any sentencing policy, but as guidelines, this is insufficient, as Roberts suggested at a hearing regarding what would become s.718 (House of Commons
(Canada), 1993: 28-9). Even if Parliament, and perhaps the judiciary itself, are reluctant to follow a rigid tariff structure, or a sentencing grid, there should be clearer suggested guidelines for what type of sentence might be appropriate: custody or non-custody, or fine, or community service. To be fair, s.718.2(e)
does state that imprisonment should be used only if other options are not
appropriate. Nevertheless, specific instruction in how one puts "one or more" of
these principles into action is left begging (Roberts, 1998, 1999a, 1999b; Roberts
& von Hirsch, 1999).
In terms of philosophies of law detailed in Chapter 2, each of these
principles is set out in formalist, positivist language, yet we see these as actually functioning in a manner that is more accurately described as within the legal
realist camp. The inclusion of aggravating and mitigating circumstances when considering sentencing offenders is precisely an indication of how specific context should be consulted along with the positive law. Yet this need not lead to
"unwarranted disparity" as mentioned by the Sentencing Commission's surveys of Crown and defence counsels. Flexibility, when combined with clear guidelines, as set out by the Sentencing Commission (1987) would be an improvement over the existing language of s.718.
3.2.2.1 Denunciation
The philosophy of denunciation is best understood as part of a larger system of punishment. As denunciation demands a normative point of reference, philosophically it is clearly from a natural law point of view. Yet, in the interest of reducing incarceration, punishments (or sanctions) for such normative violations should only be used "for the purpose of giving adequate expression to the seriousness of the offence and concern over damage done to individual rights and social interests" (Law Reform Commission of Canada, 1974: 3). Section 718.3 mentions punishment within a similar spirit. The benefit of denunciation is
that the courts can proffer a social message validating its work as protecting the
"respect for the law," and maintaining "a just, peaceful and safe society" (s.718),
without having to link this justification to deterrence. Denunciation, in this view,
performs a norm-setting function, and allows society to determine what is to be
tolerated and what is not (Durkheim, 1964).
3.2.2.2 Deterrence
Section 718(a) affirms that one of the principles of sentencing involves
deterrence. Although no mention is made in s.718 of what variety of deterrence is
to be pursued by the courts, it is safe to assume that both of the classical,
utilitarian forms are supported. Specific deterrence is levelled at preventing
individual offenders from recidivating, and is perhaps more readily accepted by the general public and criminal justice practitioners as being something that can
be achieved in reality. To the extent that specific deterrence is empirically defensible-itself a contentious issue-the second, and more general form, is even less hopeful if one intends to find empirical justification. Nevertheless, deterrence as a philosophy seems unshakeable as a justification of sentencing practices.
3.2.2.3 Separation
Separation of the offender from his or her community is a flexible policy response from the justice system's perspective. As a custodial sentence, the principle of separation straddles the natural and positive law approaches in that it can be seen as a support in aid of punishment, but also as a positivistic solution
to providing for structured opportunities for the treatment and rehabilitation of the
offender. Appeals to the protection of society thus work well with sentences of
separation.
3.2.2.4 Rehabilitation
Canada, in the first part of the twentieth century, was "ambivalent" to the
idea of rehabilitation, whereas other nations (the United States and England) were more overtly combining rehabilitation with imprisonment (Canadian
Sentencing Commission, 1987: 36-8). A concomitant aspect of rehabilitation is the amount of time to be set aside for its success; rehabilitation, if it is to be achieved via a term of custody, would seem to demand an indefinite sentence.
Finite, or determinate, sentences would call upon medical and corrections staff to deliver the impracticable. Ironically, this reluctance to embrace indefinite prison terms allowed the Canadian system to avoid adopting a practice that has been subsequently seen as unsuccessful in delivering rehabilitation. Canada's escape was not complete, however. Canada, with the Report of the Canadian
Committee on Corrections in 1969, turned to rehabilitation as "the overall end of the criminal process as the protection of society" and they asserted "that this is best achieved by an attempt to rehabilitate offenders" (cited in Canadian
Sentencing Commission, 1987: 36). Although Canada in the 1970s moved toward the principle of rehabilitation, it still remained largely opposed to the idea 81
of indeterminate sentences22,as the 1987 Sentencing Commission observes:
"the criminal justice system adopted rehabilitation as the underlying sentencing
rationale and spurned its practical implications for a sentencing policy. By so
doing, the system thereby entrenched the age-old discrepancy between theory
and practice" (38). Arguably, by retaining parole, Canada has maintained an
indeterminate sentencing structure, with release dates being dictated to some extent by treatment progress.
3.2.2.5 Reformation
Similar in scope to the treatment philosophy, reformation seeks to correct
behaviour. Correctional facilities at the federal and provincial level follow this
principle as their namesakes. Programming and preparation for reintegration into offenders' local communities are the main foci here. Reformation can be normative and moralistic-along the lines of a natural law approach--or it may be more overtly treatment-based and positivistic. In seeking to limit the use of incarceration, the Code supports an approach that reduces the chance of demoralizing offenders to the point that they are unwilling or unable to cope with various programming options, such as education, life-skills development, or more medically oriented counselling.
22 The 1969 Repod of the Canadian Committee on Corrections (1969), also known as the Ouimet Report, advised that Canada abolish any practice of indeterminate sentences. At the time, only BC and Ontario employed such terms. In 1977 indeterminate sentences were eliminated, but have been retained for dangerous offenders (see, Canadian Sentencing Commission, 1987: 37). 3.2.2.6 Deserts and retribution
The "just deserts" philosophy is most notably linked to the classical,
utilitarian, tradition of Bentham (see Chapter 2, above). A deserts-based
philosophy of sentencing is consistent with the ideas of punishment and
retribution, each of which emphasizes the need for the offender to receive
physical and or mental punishment for his or her crimes. Punishment for criminal
behaviours also serves the ideas of deterrence and denunciation, while providing the public and possibly the victim with avenues for formal retribution (Julian V.
Roberts & D. P. Cole, 1999; Tremblay, Cordeau, & Ouimet, 1994; A. Von Hirsch,
1990). Retribution seems to be a necessary part of any justice system's appeal to the wider public. This may account for the unwillingness of political entities such as parliament from taking a more active role in sentencing.
3.3 Sentencing disparity in a Canadian context: Empirical evidence
This section of the dissertation reviews the history of empirical research on sentencing disparity in Canada. This review places the current study within the broader context of sentencing disparity research within Canada. As a result, each of the studies examined in this section is explored in detail with a focus on their methodology and results. This will highlight the importance of this research, the rationale for the methods adopted, and the contribution of this dissertation to the understanding of the nature of sentencing disparity at the intra-provincial level in Canada, generally and British Columbia, specifically. Although there has been a large body of research devoted to the
exploration of sentencing trends and much work undertaken in the development
and discussion of sentencing policy (Ashworth, 1983, 2000; Doob, 2000; Roberts
& von Hirsch, 1999), there is a paucity of research on sentencing disparity in
Canada in particular. All the research that exists has shown there are wide
disparities in both the type sanction and lengthlamount of sentence (Birkenmayer
& Besserer, 1997; Roberts, l988a, 1999b; Turner, 1993). However, there are
several limitations in the research to date because such a small amount of study
has been undertaken. This is probably due to the complicated nature of
operationalizing sentence severity. As a result, researchers have been forced to
focus on one or a small number of offence types (P. J. Brantingham &
Brantingham, 1987; Reed, Bleszynski, & Gaucher, 1976), one type of sentence
(P. L. Brantingham, 1985; Julian V. Roberts & David P. Cole, 1999; Scanlon &
Beattie, 1979), a narrow definition of sentence severity, termed the Most Serious
Sanction (MSS) , or sentencing disparity as a small component of a broader
study on sentencing in Canada (Scanlon & Beattie, 1979; Turner, 1993).
One of the first studies that examined sentencing disparity in Canada was
undertaken by Reed, Bleszynski and Gaucher. The researchers were interested
in sentencing outcomes for 3,322 accused charged with murder from 1961 to
1974. Reed and his colleagues were interested in describing the relationship
between offender characteristics, type of homicide and how this relates to sanction outcome and length. The authors found extensive disparity for "similar
kinds of persons charged with committing the same type of murder" (Reed et al., 1976: 34). This finding should be interpreted with caution as it is an exploratory study that did not control for alternate influences on sentence outcome.
In 1979, under the auspices of the Ministry of the Solicitor General of
Canada, Scanlon and Beattie conducted a large-scale study on the use of incarceration in Canada. These authors investigated the use of incarceration and incarceration length, using Statistics Canada data23for several offence types, including robbery, theft, break and enter, assault causing bodily harm and
Narcotic Control Act violations. The authors devoted part of their analysis to a description of sentencing disparity for four regions24in Canada-Pacific, Prairie,
Ontario, and Atlantic-for the period of 1970 to 1973. Scanlon and Beattie found substantial variability in the use of incarceration and the length of incarceration among the four regions. Four of the five offence categories, the exception being robbery, displayed significant disparity in sentence across the four regions.
Break and enter and assault causing bodily harm offenders were sentenced in the Atlantic Region to terms of incarceration at a much higher rate than in the other three regions. Moreover, Narcotic Control Act offenders were sentenced to terms of incarceration more in the Atlantic Region and to a lesser extent the
Pacific Region. In contrast, theft offenders were sentenced to incarceration at a higher rate in the Prairie Region. Generally, the regions with the highest incarceration rates for a given offence type tended to impose the shortest length of incarceration, while those regions with the lowest incarceration rates exhibited
23 Scanlon and Beattie (1979) state that they obtained their data from Statistics of Criminal and Other Offences, a publication produced by Statistics Canada. 24 The authors did not include data from Quebec, Alberta, Yukon and Northwest Territories due to inconsistent data for these provinces and territories. 85
the longest terms of incarceration. The authors contend that the results must be
interpreted with a degree of caution, due to limitations inherent in the data,
especially since the data was not current (even in 1979) and there was data
missing for Quebec , Alberta, the Yukon and the North West Territories (Scanlon
& Beattie, 1979).
Brantingham (1985), in her study of sentencing disparity in two locations,
one a suburban centre and one an urban centre, takes a different approach to
the understanding of sentencing disparity in a Canadian context. Using a sample
of 2000 legal aid cases in 1979 and 1980, she examines factors in legal aid
cases that have been stressed as correlates of sentencing disparity in past
research. Specifically, she explores four clusters of factors related to sentencing
disparity. The first are case fact variables, which include offence category,
offence seriousness, aggravating factors, mitigating factors and other case fact
variables, while the second set is comprised of offender characteristics, including
the presence of a prior record, criminal career characteristics and socio-
demographic characteristics of the offender. The third set of variables captures
operational factors such as the presentence report recommendation and whether
or not an offender entered guilty plea. The fourth sets of factors, what she terms judge characteristics, include variables that revolve around individual judges and their sentencing patterns for certain crime types. The dependent variable,
sentence type, was analyzed using discriminant analysis and the sentence length
(for jail terms only) was analyzed using multiple regression. Overall, the model was able to accurately identify 66% of the sentencing outcomes (66% of probation outcomes, 71 % of fines and 59% of incarceration outcomes).
Moreover, Brantingham found that the best predictors for sentence type were
indicators from the case fact factor cluster. For sentence length, the multiple
regression model was able to account for 86% of the variation in incarceration
length. Brantingham emphasizes that the strongest predictors were the number of prior convictions and the presence of a weapon (aggravating factors).
Brantingham and Brantingham (1987) analyzed data from several
Canadian Governmental ~ources*~to explore variability in convictions under the
Narcotic Control Act, for drug-related offences, including possession, trafficking and other drug-related convictions from 1976 to 1984. At the aggregate level, there was substantial variability in the convictions for possession and trafficking in each of the provinces at the beginning of the study period, with a convergence of the conviction type nearing the end of the study period. The general trend in this study was an increase in the convictions for trafficking and a concomitant decrease in convictions for possession. However, Brantingham and
Brantingham found that there was disparity in the likelihood of conviction in each of the provinces and territories under study. Ontario, British Columbia and
Manitoba had the highest rates of Stay and Withdrawal as compared to other provinces. In addition, the authors observed that the sentence outcomes varied widely by province (P. J. Brantingham & Brantingham, 1987).
25 Brantingham and Brantingham collected data from the Bureau of Dangerous Drugs, the Department of National Health and Welfare, Uniform Crime Reports and case data from departmental litigation files to conduct this evaluation of litigation services. The analysis of drug prosecutions is one part of this overall study of litigation services. Julian Roberts (1995), a pivotal author on the subject of sentencing and sentencing disparity, examined the use of in~arceration~~from 1991 to 1992 for six jurisdictions (Prince Edward Island, Nova Scotia, Quebec, Ontario, Alberta and the Yukon) in Canada for 10 offence types, including violent offences, sexual offences, property offences and other offences. He noted that at the aggregate level, that there was substantial variability across jurisdictions for all offence types. Moreover, Roberts found substantial variation for different offence types by comparing the sentence length from the goth percentiles for each jurisdiction
(Roberts, 1995).
In 1999 Roberts conducted a study of disparity for nine jurisdictions
(Newfoundland and Labrador, Prince Edward Island, Nova Scotia, Quebec,
Ontario, Alberta, Saskatchewan, the Yukon and the Northwest Territories) for the years 1993 and 1994. The data for this study were extracted from the Adult
Criminal Court Survey and sentencelsanction was operationalized using the Most
Serious Sanction. Looking specifically at the rate of incarceration and the average length of incarceration for a select group of 11 offences2', Roberts found substantial variation among the 9 regions. Overall, judges in Prince Edward
Island, Ontario and the Yukon use incarceration the most, while judges in
Quebec, Nova Scotia and Saskatchewan use incarceration the least.
Conversely, judges in Prince Edward Island, Ontario and the Yukon sentence
26 The data were obtained from the Sentencing Study, Canadian Centre for Justice Statistics. 27 Roberts (1999) uses a sample of offences that fall into several offence categories. These include violent offences (assault level 1 and 2) property offences (break and enter, possess stolen goods, theft under $1,000, mischief under $1,000) driving offences (impaired driving, driving disqualified) a drug offence (NCA possession) and administrative offences (failure to appear, failure to comply). 88 offenders to a shorter stay in prison overall, while judges in Quebec, Nova Scotia and Saskatchewan sentence offenders to longer terms of imprisonment. Roberts concludes that although substantial disparity exists it is difficult to identify the causes of this disparity due to limitations in the data collected in the Adult
Criminal Court Survey (Roberts, 1999b).
This review of research on Canadian sentencing disparity has accomplished several tasks. First and foremost, this review has shown that every study has identified a degree, usually a substantial degree, of sentencing disparity among different regions in Canada. This holds for both sanction type and, in the case of incarceration, sanction length. Second, there is an apparent need for a greater amount of research to be undertaken on the subject of sentencing disparity in Canada. Third, there is almost no research that attempts to explain the causal factors involved that produce disparate sentences, except for Brantingham (1985) and Palys and Divorski (1986). Fourth, the studies reviewed operationalized sanctions differently. Fifth, much of the research reviewed explored sentencing disparity as a small component of a larger study on sentencing in general. Sixth, a large portion of this research is dated and may not apply to the present context. Seventh, almost all the disparity research focuses on inter-provincial variation and does not address intra-provincial variation that is important for the identification of mechanisms that lead to disparity. It is clear that there is much work that needs to be done in the area of sentencing disparity. This dissertation will address many of these limitations of past research on sentencing disparity and in doing so will contribute significantly
to this under-researched, but crucially important area.
It is a curious mix of natural and realists' notions of law when public
opinionz8seems on the one (analytic/positivistic) hand, to expect uniformity and
proportionality in sentencing, while on the other, to forward appeals for
contextually specific discretion. The latter reflects a further curious (confusing)
blending of natural law morality with realist legal ethics. The position adopted
here is that a sense of sentencing can be made if one is prepared to adopt a
philosophically consistent and clearly delineated set of core principles with which judges can then exercise "warranted" disparity.
Perhaps the most important aspect of using aggregate data is the relative ease with which one can determine anomalies or points of interest. These peculiarities are often sites of valuable in-depth inquiry. Yet these intriguing areas may well be missed if one did not have the advantage of seeing the larger, aggregate picture. In depth work, such as a qualitative review of decisions, may well miss out on the chance to focus that fine granularity of research on those areas that are known to be unusual. Aggregate research may not be able to answer specific questions in the way that in-file reviews might, but it can assist in pointing these more focused efforts. Aggregate research on court records will also provide a backdrop for case law analysis. A limitation for research based exclusively on case law reports is that they are necessarily a selective sample of
28 Popularlpublic opinion and sentencing was a main interest area for the Canadian Sentencing Commission (Roberts, 1988b). International studies continue the discussion of the nature of popularist views on sentencing (Douglas & Ogloff, 1997; Roberts et al., 2003). 90 all cases being decided in the courts. Each approach can guide the other in framing questions and gathering the appropriate data with which to answer them. 4 METHODOLOGY
This research employs an exploratory data analysis (EDA) perspective
(Flach & Kakas, 2000; Murray, McGuffog, Western, & Mullins, 2001) to identify variables that influence sentencing patterns. Moreover, this dissertation addresses some of the methodological limitations of past research on regional sentencing disparity in Canada. Both Total Sentence (TS) and the single Most
Serious Sanction (MSS) are used. These two mechanisms of operationalizing final dispositions that result in some form of sanction. Total sanctions can involve more than one sanction (prison, probation and a fine, for one charge), while the single most serious sanction (MSS) loses the mix of sanctions, but allows for more detailed measurements of sentence quanta for multiple records.
It is not feasible to consider the manifold combinations of TS while simultaneously tracking each separate sanction quanta for more than one case.
In addition to jurisdictional comparisons, intra-provincial sentencing patterns are analyzed. Specific attention is given to four general UCR Offence
Categories (Property Offences, Drug Offences, Driving Offences and Other
Offences), and specific Criminal Code offences, using a purposive sample of eight jurisdictions in British Columbia. These are: Vancouver, Victoria, Prince
Rupert, Salmon Arm, Prince George, Kelowna, Campbell River and Abbotsford.
All Adult Criminal Court records (N:=88,605) for these jurisdictions, between June 1, 2001 and May 31, 2003, are analysed to identify macro-level variables related to sentence outcome. This complete two-year sample allows
the identification and description of intra-provincial sentencing variations for
several different offence types in both urban and rural settings.
The primary purpose of this dissertation is to identify, at the aggregate
level, the key factors that influence adult criminal court sentencing patterns for
the eight jurisdictions in the study area. This is at once a straightforward and a
dauntingly complex task. It is simple in the sense that it makes use of court
records data that have been administratively captured and organized and made
available to the author by the Court Services Branch. Clearly, access to sensitive information, particularly related to the decisions of the judiciary and other court officials, has been very problematic for many researchers and this
dissertation has been greatly aided by such access.
While the court services data are rich and well structured, they cannot
move beyond aggregate depictions of sentencing trends. Beyond basic demographic variables, individual information is not captured in the court data.
However, Adult Criminal Court data contained in JUSTIN allow for basic comparisons of age and sex of accused.
To effectively deal with such complexity, the methods used in this research are made as transparent as possible. This chapter provides an overview of the various methodologies used in this dissertation, and how each is appropriate given the strengths and limitations of the data. For clarity and continuity, specific complications or elaborations on procedures will be addressed in the results section. 93
The guiding perspective of this study is Exploratory Data Analysis (EDA).
EDA is an iterative process, most commonly employed in computing and geo-
statistical analysis of spatial data, but crime oriented research can be found in
the literature (Chakrovorty & Pelfrey, 2000; Walton, 2005). In essence, the EDA
combines both the traditional inductive and deductive approaches, often through
various visualization techniques (Tukey, 1977). This approach to data analysis
acknowledges an earlier observation by Wallace in his Logic of science in
sociology (1971, cited in Ted Palys, 2003: 40-1) that research is never truly either
inductive or deductive, but rather, a mixture of both. In this, and the EDA view, it
is legitimate to begin the descriptive work and preliminary data "discovery1'before the researcher is obligated to make a formal hypothesis, as per the deductive
model. While this research formally sets out to test the null hypothesis of "no observed difference between jurisdictions," prior research and informal discussions with criminal justice professionals suggests that finding empirical support for the null hypothesis is unlikely. However, the precise empirical nature of what causes any observed differences is unclear. The working assumption of many in the field of court records analysis is that there will be difference, but there is little specific agreement regarding the steps to conceptually map, or model this difference. In this regard, the present research is more closely related to formal EDA (Tukey, 1977). While the present analysis does not represent a full data mining effort, it does adopt Tukey's notion of using observed trends as the starting point, from which sound, directed, theory (or formal hypotheses) can be generated and tested. EDA uses visualization of data as a key method for uncovering patterns. Pattern recognition is a well supported research strategy in the geographic (or spatial and temporal) analysis of crime (Chakrovorty &
Pelfrey, 2000; Maceachren, Wachowicz, Edsall, Haug, & Masters, 1999). The use of charge location quotients (described below) fits into the EDA philosophy by providing a way to "discover" patterns within the data through quantitative and visual means. This is consistent with the perspective of legal realism adopted in this dissertation, as both firmly assert that empirical data and the analysis of this data is the primary means to discover "nel~"knowledge and understanding of reality.
While such distinctions may appear unnecessary to some, the primacy of which approach one takes is crucial to others. If research is data- or theory- driven, data does impact the way one approaches both the formation and the exploration of research questions. The approach argued here is that most, if not all, research can be described as having done both at one stage or another. To claim one's research is purely deductive (or inductive) is to simply hide those research aspects that do not conform to the chosen path. EDA embraces the spirit of Wallace's "Wheel of Science" and that it is only natural that a dynamic world requires an equally flexible research strategy.*'
29 The author would like to acknowledge his ongoing, appreciation for research methods as inspired by Ted Palys of the School of Criminology at Simon Fraser University. Professor Palys's Research decisions, now in its third edition (2003), provides an excellent discussion of the merits of combining inductive and deductive approaches, but also, more importantly, the need for research to avoid mono-method bias, or methodological "monisml'(see particularly, 60-1). 4.1 Macro-Level methodology: Working with administrative court records
To adhere to the tenets of legal realism, this study will discover the nature and extent of sentencing disparity in several regions in British Columbia. To accomplish this task, this research examines basic trends in Adult Criminal Court
(ACC) sentencing patterns for eight jurisdictions in British Columbia. The nature of this data set demands an aggregate, or macro, level analysis of adult court dispositions, as individual case files are not available. Case file review was not feasible at this scale, and the primary purpose of this research is to establish an empirical baseline of sentencing patterns. While general sentencing patterns are presented for typical offence categories, particular attention is paid to "drug- related" sentences. These sentences stem from a violation of the Controlled
Drugs and Substances Act (or C. D.S.A., 1996, c. 19).~' At the same time, in interest of establishing the context of drug-related charges, a wider range of criminal activities is examined, including violent offences and offences against property.
In analyzing Provincial and Supreme Court data, I make use of the BC
Court Services Branch (CSB) Integrated Justice Information System, or
JUST IN.^' This database is integrated in that it holds linked data in support of a number of court administrative functions. Scheduling of police, Crown, and the
Judiciary is one of its main logistical services. There are modules, or
30 See the following URL for the complete C.D.S.A.: http://laws.justice.gc.ca/en/C- 38.8136401.html [updated: 31 August, 2003; accessed: 16 August 20041. 31 JUSTIN-its particulars and mandate are covered at the Court Services Branch (Attorney General, BC) website, URL Reference: http://www.ag.gov.bc.ca/justin/index.htm [accessed: 16 August 20041. components of JUSTIN that allow the creation and submission of reports to
Crown Counsel. JUSTIN is not solely an archive of court records, although it is this aspect that makes this research possible. The JUSTIN Court Module collects details regarding each appearance of an accused, the status of any charges and any dispositions and their attributes (length of prison, or type of prohibition, and so on). Access to JUSTIN allowed the author to examine 100% of completed decisions for adults appearing in either Provincial or Supreme courts over the two year study period (June 1,2001 through and including May
31, 2003), resulting in a total of 88,065 records across the eight jurisdictions.
Sheer size of the data allows for the discovery of trends that would be impossible to track using file reviews alone.
At present, no studies have examined sentencing patterns using data at this level of administrative detail or at this level for the province. Data are available, through Statistics Canada, and its research bulletin, Juristat; however, these reports and the tables from which they are based do not permit specific comparisons at the level undertaken here.32 This analysis provides the empirical picture of sentencing patterns for eight jurisdictions in British Columbia so that exploratory data analysis is possible.
4.1.1 Adult Criminal Court data
Formally, the data for this research are drawn from an extract of the
JUSTIN database, an information management system maintained by the Court
32 Juristat is available via most university libraries, or directly from Statistics Canada, catalogue number: 85-002-XlE2004012. 97
Services Branch (CSB) for the province.33 Starting in early 2001, JUSTIN data covered between 80 and 90% of court caseload records within the province; this improved to 93% for March of that year, and, starting in April 2001 all jurisdictions began reporting to JUSTIN. Allowing for one additional month for the newest jurisdictions to adapt to the reporting process, the data collection period for this study begins June I,2001. Before JUSTIN was implemented the research presented in this dissertation could not have been done. There was no uniform
Provincial method used for collecting court records. Comparisons between jurisdictions, for some cities, would have required extensive examination of how records were kept. JUSTIN does not eliminate administrative error, but it greatly expands the possibility of comparative analysis. Additionally, by using JUSTIN data, the present study is more easily comparable to many reports generated by the Canadian Centre for Justice Statistics, which manages the Adult Criminal
Court Survey (ACCS).~~
A complete list of JUSTIN data elements for the original extract is given in the following table.
33 See the Ministry of the Attorney General's JUSTIN Homepage at URL Reference: http://www.ag.gov.bc.ca/justin/ [Updated: 17 May 2005; accessed 7 July 20051. 34 A useful starting point for exploring the available data (at mainly the provinciaI/territorial or national level) is the Statistics Canada "Justice and Crime" start page, located at URL Reference: http://www40.statcan.ca/lOl/ind01/12~2693.htm [Updated: 6 July 2005; accessed 7 July 20051. Details on the Adult Criminal Court Survey (ACCS) can be found at URL Reference: http://www.statcan.ca/english/sdds/3312. htm [Updated: 6 July 2005; accessed 7 July 20051. Table 4.1 General Data Elements for JUSTIN Extract
---"--".-. prp. ---. -- -*-" - "-,--*- "-?-- -" - .*------^^I" --^ -- ^ . - - - . General Data Element Description
Participant identification number Identification codes for each accused
File location Jurisdiction (8 separate court locations for study period) - -..- - 7- " - . - I -- ... " - ,
I Accused sex and date of birth Data for individuals only; no corporations. Sex and DOB are not required ACCS elements charge(s) BY statute (C.C.C., C.D S.A., etc.). v-r- - .- - m.---. -" ----"-.-*.- *.- -."." -. - -
Appearance date - .*- ---= " -.., --,- - Appearance locatic Appearance reason Pre-trial and trial hearing categories , -- " . . " . ,.-. - -
Plea Guilty, not guilty, special pleas . . - " .-
Sentence, including type, term and date. Quanta for jail, conditional sentence, probation, fines, restitution, and classes of prohibitions or orders For a complete description of the specific JUSTIN data elements and how each is coded and cross-referenced to the national ACCS, the reader is directed to the "Field Interpretation Document" (Canadian Centre for Justice Statistics,
2003: 71). Appendices Appendix A-Case characteristics standard file layout, provides a complete description of the variables contained in the Justin data used in this research.
The data from JUSTIN are too general to describe the sentencing outcomes for complete cases. To compensate for this limitation, the extracted file was joined to a series of tables provided by the Department of Justice. This process required the expertise of two database programmers to link the two systems.35 After linkage and validation of the data's integrity, it was then possible to analyze data for a range of charge specific information categories, including UCR (Uniform Crime Report) description, offence types (such as charge by type of statute, section, paragraph) and sentence outcomes (such as length of prison, conditional sentence, probation and the presence or absence of various prohibitions or orders). That is, the data allow each disposition to be attached to its single most serious charge and the specific section(s) of the
Criminal Code or statute. This linkage allows for various levels of UCR specification, and thus, comparison to other jurisdictions with relative ease and accuracy.
4.1.2 Study parameters and selection criteria
The study parameters for this research are, to a large degree, mandated by the JUSTIN database, and its link to the Department of Justice's most serious
35 The two database programmers are Ryan Thompson, a consultant hired by the author and Richard Fedora, Chief Information Officer of Forensic Logic, Inc. Together, these two programmers parsed the extracted JUSTIN database into a relational database that enabled the analysis presented in this dissertation. Richard Fedora, specifically, joined the ACCS data to a lookup table containing the Statute and Most Serious Sentence (MSS) Tables. charge tables. Limitations of this research database are discussed later in this chapter and also in the concluding chapter, along with recommendations for approaches to future research. At the time this research was begun, and after permission to access the CSB data was granted, electronic records were available starting in 2001. The latest dataset available with a complete month was May, 2003. This research uses all adult court records adjudicated with a court date between June 1, 2001 and May 31, 2003, inclusive, for the eight jurisdictions. In addition to the dates for which data were available, records selected for inclusion in this analysis are based on several parameters. Figure 2 depicts the flow of records from the original extract through to the final research dataset "JUSTIN linked". Formally, each record must:
1. Possess a completed disposition, i.e., no "in process" or "unknown"
dispositions are included. Given that JUSTIN is a caseload database, it
necessarily holds a great deal of such information.
2. Have a completed gender code (male or female). All cases where gender
was not coded are excluded. The majority of these exclusions is for records
involving corporations, and is out of scope for this project.
3. Be sentenced under a federal (and not a provincial) statute.
4. Finally, all records charged under the Young Offenders Act (YOA) are
excluded .36
- - 36 This includes all YOA charges, including Ss. 26 and 50 of the C.C. (failure to comply with a disposition and inducing a youth to fail to comply with a disposition). Figure 2 Macro Data (JUSTIN) Flow Model
Legend
[nyiJUSTIN linked 1 Figure 2 maps the flow of "Ns", or case records, for the ACC extract from
JUSTIN. Initially, 791,271 records were obtained from the flat (unstructured
data) file. Once this file was read into MS-ACCESS O (a relational database),
the appropriate series of SQL (Structured Query Language) queries were run to
select only those data that fit the requirements for inclusion (items listed as 1-4,
above). After the excluded data are removed, the case count drops substantially
("JD", n=101 ,I88). These records are then joined to a special table created by
the Department of Justice to convert the Adult Criminal Court Survey data (which
contains several possible sanctions such as prison, conditional sentence,
probation, fines, etc.) into the single Most Serious Sentence (MSS). Note that
this process does not remove the TS information, but rather appends the MSS
details to each record. Once the two tables are joined, and further validation of
dates is completed, the total size of the dataset is reduced to n=88,065 ("JUSTIN
linked"). JUSTIN linked contains the complete dataset for the macro-level
analysis. Unlike previous research (Roberts, 1999b), this study includes both
Federal and Provincial records.37
This study uses recorded dispositions as the unit of analysis. Specifically,
each disposition is traced from a series of appearance records. Not every record within the original data request resulted in a formally completed decision (or
"disposition"). Appearances that resulted in no decision being rendered (such as
in a preliminary inquiry) were not used in the analysis. In this analysis, court
records are to be distinguished from the commonly used term "case". A "case"
37 Roberts looked at provincial totals for nine provinces, but federal data were not available. Although these records accounted for only 3% of his 550,000 records (see Table 8.1 at p.138), federally-charged offences are likely to attract more serious sanctions (in type and quanta). lo3
could include several charges for any one accused or even multiple accused with
multiple charges. When there are multiple charges they may be under one or
several informations. The court data are not arranged by "cases" but by charges
that received a final disposition (i.e., a "completed disposition). This leads to a
second layer of complexity when looking at court data; whether or not all
recorded sentence conditions are considered in the analysis (i.e., a "total record
structure"), or alternatively, the Most Serious Sanction (MSS). MSS analysis
counts only the most serious sentence while subsuming the other sanctions.
MSS counts categories in the following order: prison, conditional sentence,
probation, fine, and other, with each category preceding those that follow in
terms of seriousness. It is rare for fines or other sentence types to be the MSS,
so analysis at this unit of measurement tends to be "top heavy" in that the first
few categories of MSS will describe the bulk of the decisions. One must take
care when working entirely within a MSS or a total record structure.
Sentence outcomes are described separately using both the total and
most serious sanction classifications.. At the total sentence level, records are
analyzed using all sentence types (prison, conditional sentence, probation, etc.)
adjudicated for the entire, 24-month study period (June 1, 2001, to May 31,
2003). These statistics reflect the presence of a sentence condition, regardless
of attending co-conditions. For example, when "all prison sentences" are
described, all records in which accused persons were given prison time are
included, regardless of whether or not other orders or conditions-such as a weapons prohibition or a fine-were also given. Such a strategy allows for the most detailed analysis of each type of sentence. It also allows for consideration of less serious sentences, which are not captured in a MSS analysis.
The year 2002 is particularly important to this research as it is the only full calendar year in this study. To use the estimated 2002 population data, or to compare any of the individual jurisdictions to trends for the other provinces, the time frame must be the same. This requires that all provincial comparisons to this research be made for 2002 only, and not using the entire 24-month collection period.
4.1.3 Limitations and strengths of the JUSTIN extract
4.1 .XI Limitations
The most significant limitation for the macro data set is that it contains few socio-economic status (SES) variables. Other than age and gender, no information is available in the extracted data about typical demographic information of accused persons. The lack of demographic data is unfortunate from a research point of view, but the fields within JUSTIN are consistent with its primary function of tracking and scheduling court events. Collecting details on individuals beyond those required to identify the accused is superfluous and adds complexity to the structure of data collected by the ACCS. History of prior court contacts, such as the number of charges and or the number of convictions for each accused, would facilitate research into the handling of specific categories of accused. For example, one might be able to asses the relative impact of those accused who have lengthy histories of contact with the courts. Ethnicity is also thought to be a primary variable in how accused are treated before the courts 105
(Gabbidon & Greene, 2005). More micro-level data is available for suspects at the police file level. lnformation such as ethnicity, prior criminal histories, prior charges, initial charges, and so on would provide an excellent companion study for the present research. Future research efforts may, however, pursue this option.
Difficulty with official criminal justice records are well documented (Babbie,
Halley, & Zaino, 2003; Ted Palys, 2003). The crime funnel (P. J. Brantingham &
Brantingham, 1984) is particularly important when examining court data. Plecas and associates warn that only one-fifth of founded marihuana production cases go to charge, and of these, less than 2% receive time in jail (2005). This example serves as a reminder that data collection is never complete: something is always left out, or missing. Although this research looks at actual dispositions, court records have an attrition process of their own. lnformation may be incorrectly entered, or omitted altogether. Systematic errors can occur in record gathering, and can be a more serious threat to the reliability and validity as these errors may go unnoticed. In this research, particular attention is paid to the distributions of each variable to combat this potential weakness. In one case, a suspected systematic recording bias was reported to Statistics Canada, and subsequently, the Centre for Justice Statistics. After conferring with these agencies and the Court Services Branch, it was discovered that either Vancouver courts are over reporting single day prison sentences (when in fact no jail was ordered, but instead the single day "stood for" time spent in remand); or sentences of a single day are being ordered so that offenders can have additional sanctions attached, as noted in a CCJS report on adult criminal cases for 1991-1 992 (Birkenmayer & Besserer, 1997; Turner, 1993). These issues will be discussed at length, below.
4.1.3.2 Strengths
Administrative information systems such as JUSTIN allow for the systematic analysis of extremely large datasets. Indeed, the extracted data represent as closely as possible the entire population of all Adult Criminal Court records for each of the eight jurisdictions during the study period. The only missing cases are those for which no information was available, or critical data elements (such as charge or disposition information) were missing, out of scope
(see Inclusion rules 1-4, above), or contained obvious errors. Referring back to
Figure 2 Macro Data (JUSTIN) Flow Model, we see the flow of number of records is nearly 90,000 valid cases. Again, as Figure 2 shows, each jurisdiction has a large number of cases with which to work. Each jurisdiction was purposively selected for inclusion in this research, to cover what the literature suspects are differences due to type of jurisdiction (urban or rural), and geographic region (Hogarth, 1971; Plecas et al., 2005; Ruby, 1980).
Finally, a caution regarding the representativeness of this study is needed.
In certain instances, for illustrative purposes, total data for the eight study areas are compared, to provincial or national trends. This is done for contextual frame of reference only, and the eight jurisdiction data are not suggested as being
"representative" of BC. Although the eight jurisdictions include major contributors to the BC crime counts, they are not representative in the strictest, statistical sense, for each was chosen purposively. With this in mind, it is still useful to discuss how the study areas are different or the same from either the national or provincial trends. As individual jurisdictions, however, each is a population and not a sample, and thus, observed patterns are "significant" without having to test their variation against a hypothetical, normal, distribution, because the real distribution is already known.
4.1.4 Aggregate data analysis procedures: Charge quotients
The primary data analysis procedures used in this dissertation are simple, descriptive statistics. Court records analyses are typically concerned in making meaningful comparisons between one context, or locale, and some other comparable entity. Most of the Canadian research on sentencing patterns can be found in the excellent works by Roberts and his colleagues (Roberts, 1988a,
1995, 1999a, 1999b; Roberts & Birkenmayer, 1997). Often the primary purpose of sentencing research is to identify and track disparities in either type or amount of any sentences imposed. Inter-provincial comparisons are the most immediately available, although they are the most general, and as such, potentially mask wide variation within constituent jurisdictions. The present research addresses the provincial data for 2002, but as it captures completed dispositions for eight jurisdictions within BC, it is possible to begin to appreciate any observed regional variation.
Exploratory Data Analysis (EDA), as mentioned previously, supports the development of methods to uncover variation, particularly through visual means.
This research brings to bear a unique technique for identifying differences across jurisdictions, the charge quotient for a given location. The concept of location quotients stems from the regional sciences. Nevertheless, criminology was
"introduced" to the location quotient in the early and mid 1990s by Brantingham and Brantingham (1995; 1998). In the present analysis, the Brantinghams'
Location Quotient for Crime (LQC) is adapted for examining the proportion of charge types for each of the eight court locations.
Briefly, the LQC determines disproportionate loadings of crime for individual collection areas (or geographic parcels) vis-a-vis the proportion observed for a larger region. For example, if one police reporting district ("District
A"), contains a higher ratio of.property-related crime events than is observed for the ratio for property-related crimes for the entire city (the larger region), then
District A's Location Quotient of Robbery is larger than 1.O. Symbolically, the quotient takes form of Equation 1:
Equation 1 Location Quotient for Crime (LCQ)
Where: c = crime frequency a = area measure i = sub-area of a larger region, r
The result of Equation 1 yields a simple ratio that indicates if there is more or less of a particular type crime for that particular sub-area than for the region as a whole. For example, if 100 robberies (c) took place in District A and 1000 total criminal events (a) took place in that district, then proportion for the first part of the term is 0.1. The second half of the calculation requires finding the ratio of 109 robberies for the region in which District A resides (say 1000 for the entire city).
This number is then divided by the frequency of all crimes (of any type) for the larger region, in this case the entire city (10,000). The result, in this case would also be 1000/10,000 or 0.1. This ratio is the same as observed in the first portion of the equation. The final step is to divide the sub-area (0.1) by the region (0.1), yielding a LQ for the crime of robbery of 1.0 (0.1/0.1=1.0). A ratio of 2.0 would indicate that a particular crime type occurred twice as often as in the sub-region than in the larger region.
The conversion of the Brantinghams' (1995; 1998) LCQ into a "Charge"
Location Quotient is straightforward (CLQ). With the CLQ, however, it will be possible to describe the proportion of selected charge types by jurisdiction. This is important as one of the early suggestions from legal professionals at the organizational stage of this research was that if certain jurisdictions "see" a lot of one type of charge before the courts, there may be a tendency for that charge to become common to the point that it is no longer taken "seriously". CLQs will, in the spirit of EDA, help to test for such assumptions.
The next chapter provides the empirical picture of sentencing for each of the eight jurisdictions. Inter-provincial comparisons are made, along with a brief look at sentencing trends for British Columbia as a whole using ACCS obtained from the Statistics Canada website. As this research operates under a legal realist framework, the author is careful to report the findings separately from a more detailed discussion of why the trends take the shape that they do. Also, working with aggregate data precludes definitive answers to the natural, but 110 normative question about how much variation is too much. Chapter 6 contains the more speculative aspect of what might be a defendable reason for variation in sentencing quanta. 5 ADULT CRIMINAL COURT RECORDS ANALYSIS
The focus on survival demands that you notice the tiger in the tree before you pay attention to the beauty of its branches ... Problems are our work; we deal with them in order to survive or improve the world, and so to face them is better than turning away from them, from burying them and denying them. (Solnit, 2004: 9)
5.1 Introduction
The complete data for all jurisdictions for the two-year study period represent court records (or charges) that have been formally resolved to a "final disposition". One must not equate a record with a "case", or an individual person. Nearly 90,000 records are observed for this period, beginning June 1,
2001 and ending at midnight, May 31, 2003. A total of 27,171 accused persons accounted for the 88,065 court records, a rate of just over 3.2 records per person. Of all accused, 60.4% (n=16,414) had two or more completed dispositions for the study period. As this research is focused on determining the extent of any empirically demonstrable differences among the eight municipalities, it cannot speak directly to individual variation from a case-to-case basis. The author recognizes that a range of anecdotal examples of case files, or offender criminal histories, can be brought to bear to exemplify unwarranted disparity. Based on the limited empirical literature in this area, such data would indeed produce examples of sentencing disparity. As there appears to be a kind of "folk wisdom" regarding the variation of sentencing in British Columbia as a whole, and alleged leniency in Vancouver in particular, that the author argues that a core question needs answering: "What are the relevant sentencing patterns, and to what extent are these characterized by regional variation?"
As befits a legal realist analysis, administrative records represent the most complete, and therefore the most appropriate, picture of what the courts "really" do in practice.38 The approach taken here suggests that rather than moving straight into a review of case decisions, or legal commentaries regarding sentencing outcomes, that it would be more efficient to first identify what aspects of sentencing outcomes are evidence of a persistent trend, or whether there are rare, but highly intriguing anomalies. At issue here is the nature of sentencing patterns: sentencing data are notoriously skewed, with wide variances-so much so that samples of court data (cases, dispositions and appearances, for example) are subject to equally varied levels of reliability and validity. Distributional artefacts such as these are only truly solved when the complete population is known.
Even carefully drawn samples (random, matched, etc.) of highly skewed data may or may not include extreme scores-especially when sample size is low, as is most often the logistical limitation for detailed case file reviews. The extreme examples often capture our attention, as the opening quotation suggests, and we are well-advised to look first for "the tiger in the tree" before speculating about the nature of justice or its administration. Even a randomly selected sample of complete court files (as opposed to non-random techniques),
38 Observational studies of courts in action would certainly provide insight to how this process is affected by the dramaturgical aspects justice (see Friedman, 1999, for example). runs the risk of collecting a sample that does not include dramatic extreme^.^'
Conversely, if detailed file reviews follow a larger, more general project, one that
approaches the study of aggregate cases with an exploratory perspective,
specific trends-however small-can be identified for subsequent analysis. This
process is similar to what Palys (2003, pp. 143-4) describes as sampling "for
disaster," that is, to purposively sample for cases which do not fit the typical, or
expected condition or outcome (Becker, 1998). It is in support of this exploratory
process, but at the aggregate level, that the remainder of this chapter unfolds.
5.2 Working with JUSTIN extract data
While the strengths and weaknesses of this dataset were discussed
generally in the previous chapter, a few words regarding specific issues will help
to contextualize this and the subsequent chapter. Administrative court records,
such as those collected by JUSTIN and passed on to the ACCS, capture a great
deal of information regarding what actually takes place in the sentencing
process. The sheer number of dispositions tracked using the JUSTIN extract
allows for an almost complete population of records. As these records are not
samples of a larger collection of records, it is possible to identify both typical and
extreme data elements. For example, 97% of the 88,065 records are for
individual accused having their entire court "case" resolved with a single
disposition. Of the remaining 3%, 2.6% possessed two dispositions per accused
and 0.4% had three or more. This is a limitation of this dataset; however, without
39 Of course, one can avoid the limitations of small samples by collecting virtually all extant police files for a particular charge, see (Plecas et al., 2005) having access to all records, these rare events may have gone unnoticed. Now that truly extreme records have been identified, it is possible to return to the actual case files to consider the full set of circumstances for those involved. This discovery also points to the value of using complete data rather than samples.
The size of any sample with any hope of identifying such extremes would be prohibitive. With access to complete data, it is possible to note the extent of any irregularities and make an informed decision regarding any solutions. In this case, the number of multiple dispositions per information is so small that it has virtually no impact on the present analysis, although this issue will likely be explored in more detail in subsequent research.
This chapter sets out the basic empirical picture of charges and sanctions for the study area. Detailed discussion of these findings will take place in
Chapter 6. Such a separation of findings and the discussion, although it interrupts the narrative flow of the text as a whole, facilitates an independent reading of the findings, one that is reasonably free of the author's perspective.
As such, the text is intentionally as bare as possible; commentary is limited to assisting the reader navigate the data. Key findings are discussed in the following chapter. Beginning with the most general details, the first section contains the basic descriptive tables for observations pertaining to the study as a whole. The most frequently occurring UCR charges and their attending sanctions follow. After the general picture is revealed, it remains only to report the findings for particular charges, sanctions and their contingent distribution across jurisdictions. The eight jurisdictions are then divided into geographic regions. Vancouver and Abbotsford are aggregated to the "Lower Mainland",
while Prince George and Prince Rupert form the "North", and so on.
This focus on regions is reflected in previous chapters' discussions of
sentencing disparity as stemming from local socio-legal realities and the relative
concentrations of types of offences before the courts. While the former
discussion of disparity is addressed only briefly, the answer to the latter
(concentrations of offences) forms the main thrust of this study. The relative mix of charges would seem to have a great deal to do with sentence quanta, and even the type of sanction itself. A report by the Canadian Centre for Justice
Statistics, for example, notes substantial variation in the proportion of all crimes reported in the Northwest Territories and the province of Quebec for crimes against the person, 36% to only 9%, respectively (Birkenmayer & Besserer,
1997, p. 31). Regular publications by the CCJS-based on the ACCS-routinely document the variations in the charge rates across various geographical boundaries (Canadian Centre for Justice Statistics, 2001 b, 2005).
A further advantage to having a population and not sample data is that scores are "significant" regardless of the magnitude of variations from other scores. For this reason, no statistical tests are used in this analysis. In place of statistical comparisons, actual counts can be compared. Univariate and bivariate frequency tables (the latter are also known as cross tables) are used to explore regional variation in types of sentence or the lengths of any attending sanctions.
Cross tables are often used to compare actual contingent distributions (the cell counts in a crossable) and what would be expected by chance variation. The 1I6
extent to which observed cell counts are different than what is expected allows
us to begin to rule out the null hypothesis of no relationship between the two
variables being considered. For this study, as all cases are as close to the total
population as any data can be, this step is unnecessary.
Nevertheless, simply possessing "all the data" and observing "differences"
from one distributional characteristic (counts, percentages, and so on) to another
does not remove the need for a considered discussion of what is "substantively
significant". Determining what is substantively significant is actually a value
judgment based on what the researcher sees as meaningful, given a particular
research question or situation (Ted Palys, 2003). This issue is of paramount
importance when considering empirical and theoretical discussions about
sentencing patterns, as answers to questions such as "How much disparity is
'warranted' for offences of category x?" Chapter 2 outlined the normative aspect
of natural law jurisprudence, and legal realism's reply that only empirical
questions can be answered. This chapter presents the empirical picture and
avoids the normative "ought" questions-at least for the time being. Chapter 6 will address the extent to which the findings in this study can provide one avenue for understanding what is currently being done with respect to Canada's formal sentencing policy guidelines.
Apart from simple distributional analysis, the last comparative technique
used in this study is the location quotient, which was discussed in the previous chapter in some detail. Again, while the data are summarized and presented using these tools, the formal discussion of the findings will follow in Chapter 6. 5.3 Descriptive statistics (eight jurisdictions, study period)
5.3.1 Age and sex of accused for study area
Basic demographic information is captured by the JUSTIN extract of the
ACCS data at the court event level. Other than age at time of offence and sex of the accused, typical demographic variables such as socio-economic status and ethnicity are not captured in these data. Date of birth for accused is not a
"mandatory" data collection field for repor:ing to ACCS. Nevertheless, age at offence is well captured; less than 1,200 records (or 1.4%) are missing age information (n=86,873). The majority of the 88,065 records are linked to male accused (85%, n=75,285).40 Recall, however, that sex and age data described below, represent each record as a separate instance, and as such, it represents the age and sex associated with each charge that was seen through to a final disposition, and not an individual person.
Table 5.1 Age of Offender for each Completed Disposition by Jurisdiction, Jun 01 - Jun 03
Abbotsford 11490 31.64 10.15 0.09 18 78
-- -T- * 18-. ,-< - *.A Campbell River 2328 33.82 ' 11.59 0.24 79 Kelowna 6708 32.57 10.83 0.13 18 87 Prince George 82 Prince Rupert 14 20 39242 32.50 9.58 0.05 17 84 - - 15301 31.84 10.57 ' 0.09 17 86 Total 86873 32.26 10.17 0.03 17 87
40 Although some offenders are counted more than once, this has not disturbed the malelfemale ratio. Previous research by the CCJS found 85% of accuseds were males, and their average age was 32 years at the time of the offence, see (Birkenmayer & Besserer, 1997, p.v). This is the nature of bare administrative data; it captures events and not
individual entities with ongoing histories. Table 5.1 does give a general picture of
the age of the individual at the time of sentencing.
5.3.2 Charge mix for complete data extract
The middle column of Table 5.2 reveals the original ACCS data contained
in the original JUSTIN extract, while the last column reveals the "valid record"
counts after incomplete and out of scope records are removed. A majority of
these categories are not "final" dispositions and are dropped.
Table 5.2 Original JUSTIN Extract and Total Valid Records (N=88,065) r.-y""7 ? ,. - > * - -- - ,--A --, ------. = - l- : Valid Records -- 42175
Guilty , 43983 35856 . , -- Waive within province 5165 - Other 4285 3206 2058 1314 412 1141 Convicted of a lesser or included offence 1358 1256 Waived out of province 929 778 Committed for trial to superior court 482 -- " - Re-election to provincial court 343 -- Discharged 226 206 Acquitted (mental disorder) 100 75 Total 791,271 88,065
The last column (right) contains those cases that possess a valid, final,
disposition. The majority of exclusions are for "unknown" dispositions; these are
simply records that are not yet completed. As this study is not concerned with
caseloads, or timing of court events from initiation to completion, these data are excluded. Waiving of an accused to another court outside of British Columbia
represents the end of the record as far as the ACCS is concerned. In some
cases, complete accused files are waived back into the province.41
The right-hand column, "full data set" for this study, contains all valid data
for each of the eight jurisdictions (Figure 3). Vancouver, the largest jurisdiction in
the province, dominates the complete data with just over 45% of all cases. Less
urban centres, such as Prince Rupert, Salmon Arm and Campbell River, together
represent only 6.75%. Table 5.5 shows the Level 1 breakdown of UCR (Uniform
Crime Report) offence classifications. Level 1 categories are the most
generalized of the UCR categories. Level 2 contains more than 20 classes, and
Level 3, over 70. The Most specific UCR designation is the "description" level,
which contains over 230 separate codes. Each code, from Level 1 up through to
the descriptive categories is logically entailed in its more basic category;
therefore, UCR level 1 code "Federal Drugs'' (Table 5.5) is the master category
for UCR description "possession of a controlled substance", as would be
"production of a controlled substance".
41 Although some accused will have their case waived "out" and possibly then back "into" the original jurisdiction, all waived records are omitted in this study. The extracted data do not show to which court cases move. It would be interesting to note if there is a net gain or loss for British Columbia -particularly if the province is "known" for more lenient treatment. Perhaps this issue may be examined in conjunction with a future, detailed review of Crown or other relevant files. Figure 3 Total Dispositions, by Jurisdiction, Jun 01-Jun 03
Dispositions
Salmon Arrr
4 1,520
A total of 149 (0.2%) cases are lost (from N=88,065) due to incomplete sentence fields, even though disposition:; are recorded, including in rare cases, findings of guilt. Table 5.3 shows that six persons were found guilty as charged but did not receive a sanction. Such charges are technically completed, and so are valid dispositions for the purposes of this study, but they contain no sanction data and must be excluded.
Table 5.3 Missing UCR Data, by Dispositiori TYPe of disposition Freque~ Percent Fou~nd guilty and convicted as charged 4.03 .- Sta!y (by AG or Court) 18.12 Withdrawn 15.44 8.72 Discharged 3.36 Waived out of province 0.67 Other 49.66 Total 100 Although the number of missing cases is very small (Table 5.3), examining such cases during data verification analysis underscores an important procedural aspect of sentencing that dispositions may occur during any court appearance, or event. Table 5.4 reveals that some interim release hearings are included in the data, despite the fact that formally, such hearings do not normally result in a "final disposition". Such appearances are procedural, unlike trial hearings. The reason interim release hearings are included is that, on occasion, an accused will enter a plea, even at this preliminary stage.
Table 5.4 Missing UCR Data, by Appearance Appearance Classifications Frequency Percent Interim Release k ? 8.05 Preliminary lnquir 3 2.01 Trial Hearings 15 10.07 * -.. ,. - Other Appearances I19 79.87 Total 149 100.00
Table 5.5 shows the most frequent UCR charge descriptions for the complete data set. The eight most common charges account for over half
(n=44,839) of all records containing a valid UCR description (n=87,9I 6). The 22 specific UCR descriptions include nearly 80% of all recorded charges for the study regions. Table 5.5 Top UCR Charges, Study Area, Jim 01-Jun 03
UCR Charges ' g
3 .BREACH ,OF UNDERTAKING OF 4959 5.64 29.67 RECOGNIZANCE 7v - ^-... - L.*,-. , --." " .. 4 FAIL TO ATTEND COURT 4690 5.33 35.01 TRAFFIC IN SUBSTANCE 4601
, 1 lll.,- -1 "l".,,""" -..l".. 1 -11 ", .. %7-7-- .=------* .EN PROPERTY - < $5000 3554 7 POSSESSION OF SUBSTANCE 3129 3.56 47.84 -- - ..-- -- .------.- - - -.
: 9 : IMPAIRED DRIVING:-MOTOR VEHICLE 2710 3.08 54.08
11 MISCHIEF TO PROPERTY < $5000 2605
Fx,,, "I - . I '-. - ** " -* ,..".*..+ ---- . - 12 DRIVING ABOVE ,08:BLOOD ALCOHOL 2363 2.69 62.73
13 TRAFFICKING IN SUBSTANCE 2237
17 OBSTRUCT PEACE OFFICER 1508 18 PRODUCTION OF SUBSTANCE 1457 19 FRAUD: MONEYIPROPISECURITY > 1162 $5000 20 POSS HOU! INSTRUMEP 21 FRAUD: MONEYIPROPISEC < $5000 994 22 FAlL TO COMPLY PROBP
Table 5.6 breaks down charge categories for the complete data, by court
location. Criminal driving offences include impaired alcohol, dangerous operation of a motor vehicle, or operation causing death or bodily harm. Federal drugs offences include contraventions of the various Schedules of the C.D.S.A., and typically include simple possession of a controlled substance, possession of a controlled substance for the purpose of tt-afficking, trafficking, and production of a controlled substance.
Table 5.6 Charges by Jurisdiction, Jun-01-.lun 03
A- .- . --
Driving Offences 1074 374 1208 1153 147 275 1659 A616 7506 -- "* Federal Drugs 988 - 367 788 560- --- 121 62-7'3574- "1928~ 7.1488 Other Crimes 4523 515 1674 2744 375 615 11374 3983 25803 - ? Other Federal statutes 69 91 ' 47 - 17 --257-"Pv78npri215-v 62- ' 766-- Property Crimes 31 82 608 2124 2444 155 675 14034 5408 28630
Violent Crimes "1768 . 392 . 933 * 1393 - '-"-462 "'-P335 591 1- F2529T '1 3723 Missing I1 2 10 23 3 46 54 149 --- . Totals I161 5 2349 6784 8334 1520 "2070' "39813- w580- wt-0655
Other crimes include violations of court orders or conditions, such as failure to attend or breaches of conduct, and the possession of tools or instruments for the purposes of committing a break and enter, criminal harassment and disturbing the peace. Other federal statutes are infrequent, and include offences against the Fisheries Act. Since this UCR category is infrequent relative to the other classifications, it is omitted from Table 5.7. Property crimes are well represented in Table 5.5: theft, break and enter, possession of stolen property, and frauds. Violent crimes cornprise various assaults (aggravated, sexual, simple, etc.), and robbery.
Table 5.7 provides an overview of sentencing quanta associated with the
UCR data across the eight jurisdictions. Sanctions included in this table represent total counts of sentences, not the single Most Serious Sanction (MSS), so one guilty finding for a property offence can generate more than one sanction type. It is common, even mandatory in some cases, that one sentence type is attended by a second. Therefore, Table 5.7 includes data from as many sanction types as were listed for each disposition. As the length of sanctions vary so extensively the familiar concept of the arithmetic mean or "average" term cannot be used, and is replaced by the median. The median, unlike the mean, is not as heavily influenced by extremely high or low scores. The median number of days in prison, for example, depicts the typical sentence in that it is the value of the middle score in a distribution arranged from either lowest to highest values (or highest to lowest). Thus, for Vancouver, the median prison term for property crime is 30 days, while it is 60 for Victoria. Jurisdictions (columns) are ordered according to size, with the left-most column having the most records.
5.3.3 Median sanctions for general UCR categories by jurisdiction
The main observations for Table 5.7 (below) are as follows. The reader is reminded that the following discussion pertains to all charges receiving a sanction. All charges stem from persons as corporations are excluded from this analysis.
Property Median sanction lengths for property offences are one month for
Vancouver, Abbotsford and Prince Rupert. Victoria, Prince George and Kelowna see median terms of two months (60 days). The median prison term for
Campbell River (90 days) is three times that for Vancouver and Abbotsford (30 days), but still shorter than Salmon Arm (120 days). Municipalities with lower prison medians tend to have higher conditional sentence terms. The exception is
Salmon Arm; this court has among the highest median prison and conditional sentence terms. The remaining sanctions are relatively consistent across jurisdictions. Restitution, however, when used in Vancouver, tends to be consistently higher than elsewhere.
Other crime Median prison terms for other crimes in Vancouver and Prince George are the lowest (7 days). Vancouver, however, uses lengthier conditional sentence terms than most other areas. Campbell River and Salmon Arm have higher restitution orders than the larger court communities.
Violence Median prison terms are highest for violent crimes. Vancouver and
Victoria possess the highest median jail sentences (both at 120 days), while
Campbell River and Abbotsford have the lowest (60 days respectively). Salmon
Arm's conditional sentences are typically twice the duration of the other jurisdictions.
Federal drugs For prison terms, Campbell River has the highest median term (four months), and the second highest median length of conditional terms. Vancouver is in line with half of the other courts (30 days). Victoria prison terms are the highest among the "urban" jurisdictions (60 days). Prince George uses the highest fines ($1000) for the study area, double the next highest score. The remaining jurisdictions have median fine totals between $200 and $400. Criminal Code driving offences Prince George and Salmon Arm use the highest median prison sentences
(90 days for both), at least one month longer than observed for the rest of the study period. As one might expect, criminal driving offences capture the highest restitution rates among the UCR categories. Vancouver courts see the highest median restitution amounts; half of all restitution amounts exceed $7500.
Table 5.8 (below) presents the median sanction terms for each jurisdiction for 15 of the most frequent individual UCR crimes (drawn from Table 5.5, above).
Selected UCR categories are discussed briefly in this section.
Table 5.9, also below, provides the actual counts for prison terms that generate the descriptive data discussed in this section. Even with 24 months of data, counts for prison terms are often low for the smaller municipalities (Prince
Rupert, Salmon Arm, and Campbell River). One must be mindful that although modal values tend to be more stable than mean scores, they are still subject to wide variation when the total number of cases is low. Table 5.7 Median Sentence, by UCR, by Jurisdiction, Jun 01 - Jun 03 UCR Sanction Vancouver Victoria Abbotsford Pr. George Kelowna Campbell River Salmon Arm Pr. Rupert Median Median Median Median Median Median Median Median PROPERTY Prison 30 60 30 60 60 90 (120) 30 Cond'l 180 120 180 180 150 90 180 105 - -- --"- Probation 365 - 360 " 365 365 365 365 365 360
Fine 175 200 200 200 - ,200 200 150 200 -. - . ------,------r - - 5089 1250 360 ' ---I - 7 (30) 7 I 14 (120) 90 60- Probation 365 360 365 365 365 ., 365 360 360 -. ~-." --A- - -20d- --v- .-e250. # ,-?". --.--- - 150 - w-.." ".rn " ,--- Fine 200 200 250 294- 27c Restitution 300 294 337.5 VIOLENT Prison (120) (120) 4 A C~xd:' ?80 - 13" ?20 ~robatidn 36 5 360 365 Fine 400 375 375 500 350 250 275 500
Restitution 2018 1271 1813 1812 DRIVING Prison 60 60 60 (90) Cond? 180 180 (195) 90 120 90 90 90 --- . ---..<. "- .-xF365. ..- =--7. --"""363 m- ~robatiog 365' 365 r%pv-T*, 365 *'--365"-36 5"
Fine 600 600 600 600 - 600 , 600 600 650 - -, ooo3 r* -- ,s -7 . -7- 000- .--,-s-, T 600-~--*"*82~5~~~-=*-- -8- z?$ Restitution 7478.5' --'* , 9535 . (Boldface type and braces ( ) indicate noteworthy values) I28
Theft under $5000
Median prison terms in both Vancouver and Abbotsford are the same as
for all other jurisdictions (30 days), but conditional sentences are higher.
Assault
Vancouver has the lowest median prison term for assault (7 days). After
Abbotsford (14), most jurisdictions see median values of 30 days. Prince Rupert,
the smallest jurisdiction, has longer prison terms. Salmon Arm, also a smaller
court, has the highest median value for conditional sentences at 270 days. This
is roughly four months longer than the median conditional sentence in
Vancouver.
Possession for the purpose of trafficking in a controlled substance
The highest median prison and conditional sentence scores for
possession for the purpose of trafficking4* are found in Prince George. Both
prison (195 days) and conditional sentence (365 days) are highest across the jurisdictions. Aside from the small northern town of Prince Rupert, Vancouver
and Kelowna rate the lowest prison terms (90 days).
42 Although formally the offence is as given in the heading, it is often referred to in the literature and in practice as "intent" to traffic. Table 5.8 Median Scores, UCR by Jurisdiction, Jun 01-Jun 03
*- +. --%*.--p -=** """, - -ek-.--.-<"--- f--'- - -~*" Van Wc ~$frr'PG-' V'F="- Description Measures Med Med Med Med Med Med Med Med - .4 -* ' -" "- ..--'-. ' . -."F ,- THEFT prison (d) 36 30 30 ' 35.2p3r P 3r~4~ T <1=$5000 Cond'l (d) 120 90 120 90'- 90 75 105 14 - - - *" * p- --*- ~ 7-- - 5T v360-fw"- Prob (d) 365 360 365- a " 365 " -360~ 300 Fine ($) 150 150 200 200 150 125 125 175 'ioo""' "-"' '" ~est($) 610 ' 495 835 '-3"50-~00~~58~~335 Age (Y) 34 3 1 30 30 32 30.5 29 27 -" --- " ' -30m ASSAULT --' "- prison (dl 7-F---- " 36- 4-^" - 3d $4AT go- r-30" --"4K Cond'l (d) 150 120 90 120 60 120 270 90 . . ,<"." * -.- (b, 365 360 i6,j ' -36-5 "-s65" v-65-'"'3e -3.6d
Fine ($) 300 . 350 325 , 400 350 250 275 500 - - .~ -- C". ,,,, - < 7 - - - "'P-" Rest ($1 300 150 200'". 100 , -fT""'"'
Age (Y) ,: 34 32 34 33 34 32 33 29 Prison (dl - ^.-r'-9dm "" n' ?'-. ,NT-E FjT-fijvT ? m --- z(j - 'iG5 "--& h80--7- - '-66 TRAFFIC CDS Cond'l (d) I80 180 165 365 225 270 180 150 ., * 3" . " - "9 JF,y*w- - -IF-1 Prob (d) 365 '"*- 360 362.5 '365" -'3t%? -585 500 360' Fine ($) 500 750 2250 5000 1500 1625 2375 2500 - - ,- --.%.- .r 7-- m- Anrn -- - Rest ($1 381! '812 7216"" !, Age (Y) 3' 35.5 30 40 35 34 * --- 3d- '- '-30r v90- PT70- '?'. " POSS STOLEN Prison (E) 3( PROP<$5000 Cond'l (d) 120 120 120 210 120 75 360 25.5 ,- "" '365W rm%gO '1"*360. f-' Prob (d) * 365 360 365 365-- 240 Fine ($) 225 300 350 400 275 300 300 . ,- . 25" r~ .- ,< ..*-- I_- ~est'($) 150 575 777 1625 --, 120 Age (Y) 31 29 30 28 29 27 25 23 ?". .," *-- 15F"'~ 2-' r'8""30c ;-F '*I' Prison (d) I 14 1 1 , Cond? (d) 90 60 . 120 30 . 1 30 -. . ,-=-, .- -"------Prob Fine
Age (Y) 30 28 27 ' 30 27 '* 31- : 26 34 B&E WANTENT Prison (d) 150 270 180 365 180 150 730 30
, . r "3 /COMMIT Cond'l(d) 270 300 270. 180 180' 120 120'- 150 Prob (d) 365 365 365 365 365 540 452.5 365 I. 700 Rest ($) 475 31135 500 2530 1000 3600 . 31 6 " - Age (Y) 3 1 30 28 27 -23 '24.5 29 ' 22 IMPAIRED Prison(d) 37.5 3 0 60 42 14 67.5 90 14 DRIVING:MV Cond'l (d) 60 105 210 90 180 75 90 90 Prob (d) 365 365 540 365 365 365 362.5 365 UCK van v~c ~o'rra PU ne~ GK SA Description Measures Med Med Med Med Med Med Med Med IMPAIRED Fine ($) 600 600 600 600 600 600 600 650 ,w- --42C 8"' -,,r - ,. . '"DRIVING:MV. '.. " -~est($)--- '7550" 9535 . Age (Y) 37 35 35 36 36 38 37 41 T-.?. >----- ""- ' --u -- "-T -T26".P4"1"80" '- -- , r.r ---p ASSAULT WITH ~riszn(d) 60 90 120 90 120 180 WPNlCAUSE BH Cond'l (d) 120 180 180 180 120 195 360 180 F - > ,=------7-- -- ,*---., %- -- ,.* - -. "",------... ..-- ' Prob (d) 540 ' 380 ' 365 ' 377.5 540 365 ' 365 452 .5 Fine ($) 625 600 750 1000 1250 275 * * *- " ",.-' "-" 't7 "".* I- -.,- 77wf?.,. .- .-.. ~es?-($i---* 3000 600 . 2000 . ,*Age (Y) 32 2 7 27 33 35 30 33 2 7 --,.- --. - 7."- .--- MISCHIEF TO- - ~risbn(q'.' " -30 w-" 60 20 - 30 II """ 1 ' *" - 90 45 PROP c $5000 Cond'l (d) 120 120 165 165 30 . "? -. , . - .- p;db (d) 365 360 '-"-365. ' '365 360 360 635 272.5 Fine ($) 250 200 225 350 250 150 150 . M-T--" -->*------3- 4-1. ,.q- *.. ) --__.- ~esf($)--' '-' 200 '"*-' 293 259 '" 313.5 - 285 200 a''%58 800 Age (Y) 30 27 24.5 28 23 2 7 26 26 --. ------.---,- --.-.7-- **.-- - ,--- - m DRIVING > .08 ~kon(d) 60 2 1 14. ' - 45 14 IF 90
Fine ($) 600 600 600 600 600 600 725 700 - - -"-* .-- " Age (Y) 37 34 34 36 36r 38 37 41 TRAFFICKING Prison(d) 30 60 97.5 67.5 120 180 . 1 - -" ,8.0 ,- " -\ IN CDS ~ond'l(d). 180 180 180 180 90. Prob (d) 365 360 270 360 360 730 360 365 >" - ,,". " " Fine ($) 500 400- . 750 loo( Age (Y) 30 2 7 30 33 27 47 25 30
POSS STOLEN Prison (d) 90 ' I50 90 60 120 112.5 -180 . PROP>$5000 Cond'l (d) 270 120 180 362.5 180 90
Age (Y) 2 7 29 ROBBERY Prison (d) 729 900 Cond'l (d) 540 5~10 Prob (d) 540 730 Rest ($) 6828 11276.5 Age (Y) 29 28 OBSTRUCT Prison (d) 14 21
A P.O. Cond'l (d) 120 !30 I Prob (d) 365 360 F-.-2L - ' ,"-l,.$-,w ,"" ?'?-' .-"-w'..."T.. '.'~'"..-" """ri... ' -- r. -,:T-?..? r--.>-.1..,.- - I-"..,7-, "- . -. 1; _- UCR Van Vic Abfrd PG Kel Description Measures Med Med Med Med Med Med Med Med OBSTRUCT Fine ($) 300 250 300 200 250 300 316.5 500 * - -. '' 28 P4w*" 291 27m 27y55 a A P.O. he(Y) 29 WW'*' 26 ' 29 PRODUCTION Prison (d) 120 21 60 , 18.5 4 405 120 . =- 180- -i^-nt7n *- flv-,- Pn @I (df - ' 255 180 180 270~~316-~560"---'~ )(a') 365 360 360 195 3
hi I " f500 ''.~ooo ZOO Rest ( 3408 1812 1216 . 750 . * - p?.e-40 *, p7 - . --- Age (1 I-" 36" 35 33-T
Possession of a controlled drug or substance
The highest median prison term for simple possession of a controlled drug or substance is in Salmon Arm (30 days), although only 7 offenders received jail terms. Kelowna (15 days) and Abbotsford (14 days), hold the next highest median jail sentences. As is the case wit1 simple assault, simple possession, generally attracts minimal jail time.
Break and enter with intent to commit an indictable offence
Of the 17 offenders in Salmon Arm sentenced to prison, the median length was substantially higher than the rest of the study areas at two years (720 days).
Prince George is next at one year. Vancouver's median prison term (150 days) is slightly shorter than the rest of the jurisdictions.
Assault with a weapon I causing bodily harm
Median sentences in Vancouver courts possess the lowest prison and conditional sentence median scores in the study (60 and 120 days respectively).
With the exception of Campbell River, all other jurisdictions have median scores that are at least twice that of Vancouver for this level of assault. Abbotsford's median prison and conditional sentence lengths are both 180 days.
Trafficking in a controlled substance
As with serious assaults, Vancouver median prison lengths for trafficking in a controlled substance (30 days) are typically lower than medians for the other jurisdictions. For sanctions other than prison, there is no appreciable difference between the eight jurisdictions.
Production of a controlled substance
Here, Vancouver is the most severe in sentencing offenders to jail terms
(120 days). Other than Campbell River, which only saw four (4) cases receive prison and Salmon Arm with only one prison term, Vancouver's median score is twice that of other jurisdictions. Although not presented here, Vancouver's rate of imprisonment for production charges is modest compared to Abbotsford: each sentenced 19 persons to jail, but it took over 600 charges for Vancouver to reach this total, while Abbotsford took 265. Table 5.9 Count of Prison Sentences by Specific UCR Charge, by Jurisdiction, Jun 01 - Jun 03
Aslt wlwpn, clBH 22 16 26 46 9 13 160 87 379 - - .- - - . - .- . .*,. - F"=s-T wp-#- . '\-'- *"rZ *r*m- p-z'- B&E wlintent 92 36 51 107 5 17 1064
PFP Trafficking 18 20 24 17 4 0 , -601 121 805 -. t - -- wm7-y.". , . -- r - -"'. " r. ---wm------
Obtr. PO
-. .* ~.."- " 30- .?-, . -.rv , -- ""7-g re- r .-gr pj- -- Pos Stl 161 89 53 1 8 364 77T-84 Prop<$5k
Pos Stl 85 4 30 28 0 20 418 52 637 Prop65k
-. --".' . ' - --- ','- . ,. pT."r~rr..y r*m•‹:^6nr- p ..- r** - Traff CDS 4' Total Prison 1043 287 750 1009 67 134 7758 2231 13279 Terms 5.3.4 Regional data Table 5.10 contains the contingent distributions of the main UCR categories of interest for each geographic region. Vancouver and Abbotsford, together, comprise the Lower Mainland, while Victoria and Campbell River make up Vancouver Island, Kelowna and Salmon Arm merge into the Interior, with Prince George and Prince Rupert representing the North. The reader is directed to the different proportions for each offence type across the regions. Where these percentages differ, the region in question collectively disposes of more (or 134 less) charges through to a final disposition, in that category, relative to the other regions. Table 5.10 Crosstabulation, Main UCR Charges by Region, Jun 01-Jun 03 UCR Level 1 * regions Crosstabulation I 1 I I L.Mainland I V. Island lnterior I North I Total DRIVING OFFENCES Count I 2733 1 1990 1483 1 1300 1 7506 % within regions 5.3% 11.1% I FEDERAL DRUG Count I 7562 1 2295 % within regions I 14.7% ( 12.8% I OTHER CRIMES Count I 15897 1 4498 %within regions 30.9% 25.2% OTHER FEDERAL Count 284 153 STATUTES % within regions .6% .9% PROPERTY CRIMES Count 17216 6016 % within regions I 33.5% 1 33.7% I 7679 1 292 1 % within regions 14.9% 16.3% Total Count 51371 17873 I % within regions 100.0% 100.0% The percentages reported in each cell allows for between-group comparisons even where regions are not of the same size, as is the case here. Reading across the table, the Lower Mainland, Vancouver Island, and the lnterior all dispose of more property crimes through to a final disposition than any other UCR category (approximately one-third of all dispositions fall into this category). The North has proportionately more other federal statutes records (31.7%) than any other category, primarily because the more northerly areas see proportionately more federally-regulated fishing and wildlife charges than the other regions. Federal drugs offences are charged more frequently in the Lower Mainland, while the lnterior processes more driving offences. Violence charges are uniform across the regions, with the North's ratio approximately 3% higher (18.9%). Table 5.1 1 describes the ranges of sanctions by the most general UCR category. Regional differences are difficult to assess in general trends. Table 5.11 Median Scores, UCR by Regions, Jun-01-Jun-03 1 - -%". - - %-- - '.. -T?C7- .- '- 'LL---.- -. .- - -p-- .":'p--mv--- Measures Median Median Median Median Prope*yw.w' 3.". ' . ."..<, 62j' 523-". 63- Prison 30- '- Cond'l I80 120 180 I80 -" v *, ^. . . - -- "--- _ __ .. I- --_---*m 365- ---365' 200 200 vmy625-'-%?82 ^- Other Prison 7 30 7 27 -*- ". . ST--' " 7 ~ond?-' 120- "90 60 -"90' Probation 365 360 365 365 . --., -- ' - 1200.'- '% --rnT -200vvw-250- ne 250 Restitution 300 300 531.5 78 1 Fine 400 350 500 350 -,* ". - r-wer- 3so" Restitution "181 200 "--"2000- Fed. Drugs Prison 30 60 30 30 - - , - r 80--..-, " nxri86 Fw,-- Cond? 180 -, 240 Probation 365 360 360 360 , - . - " Fine 300 250 893- 450 Restitution 2000 120 1812 1216 30- 20 65 Fine 600 600 600 600 Restitution :7457 1000 ' '600 ' 282.5 As far as a general statement can be made, the Lower Mainland trends downward with respect to median prison terms for most UCR categories, with the 136 notable exception of Criminal Code driving offences. Vancouver Island holds the highest median prison terms for all offences, again with the exception of driving offences, which is highest in the North region. Previous tables indicate that conditional sentences are longer for crime categories that have shorter median prison terms. The Lower Mainland region, for example, uses generally shorter prison terms than others, while its conditional terms are among the highest. Once more, the driving offence category is the exception; in the Interior, conditional sentence sentences have a higher median value than any other jurisdiction. This region also is in line with the earlier observation that higher conditional terms tend to be accompanied by shorter prison terms. 5.3.5 Charges and sanctions imposed: Top 10 accused Before exploring the role of the most frequently appearing accused for the study period for all eight jurisdictions, it is necessary to discuss the nature of the individual court record in more detail. JUSTIN captures court events, which includes appearances, preliminary hearings and trial hearings for Provincial and Supreme Courts for the province. To track court events, a number of key fields are used (Canadian Centre for Justice Statistics, 2001a, 2003). The first is the accused identification number, which uniquely identifies the accused while at the same time protecting the individual's anonymity. The second data element- known as "an informationn-is stored as a number that links the accused to a charge. A third element is the charge sequence number which, when resolved to the identification number, reveals the sequence of charges for that particular accused relating to that single information. The charge sequence number represents the order in which each charge is entered in relation to an information for each accused. In situations in which there are two or more accused, each retains his or her own sequential charge sequence number, even though all are linked to one information. In database terms, information numbers hold a one-to- many relationship, as more than one record can have the same information number. To work with actual cases, whereby an accused stands before the court with one or more separate charges, the ACCS data must be linked by no less than five (5) variables: jurisdiction, court date, information number, accused identification number, and the charge sequence number (Canadian Centre for Justice Statistics, 2001a, 2003). While resolving complete cases in this sense is possible with the full ACCS data, cases in this sense are not feasible using the ACCS extract, due to the complexity of the multiple nesting of queries. Simply put, the computational power required to perform the calculations to repackage the extracted form of the data into cases is prohibitive. Such querying can be achieved, but only for a small selection of individuals, and even then, one has to select just one accused to track a semblance of a "case". For the complete two-year study data (all jurisdictions), the ten most active accused accounted for a total of 807 completed dispositions. Of these 807 dispositions, the bulk (73.5%) of these ~CCIJS~~appeared for "other" reasons-a type of hearing that is not normally associated with final dispositions, as it covers first appearances, pre-sentence reports and other administrative events. Nevertheless, the case can be concluded at any time, particularly if the Crown (formally the Attorney General) no longer sees a public interest to pursue the matter, or if the accused decides to plead guilty. lnterim release hearings (appearances designed to determine if the accused may be released while awaiting further court events) also contribute just over one-fifth (n=171) of the 807 appearances. Formal trial hearings are the least likely of the appearance types for the ten most frequently encountered accused (5.3%, n=43). Figure 4 Cross tabulation, Top 10 Accused by Plea, Jun Ol-Jun 03 Type of Plea I I I I guilty, lesser I Guilty I Not Guilty I Special Plea I charge I Total Appearance Interim Release Hearings I 46 1 0 1 13 1 0 1 59 Cla~~ifkati~n~Trial Hearings 2 1 0 0 3 Other Appearances 76 2 1 1 80 Total 124 3 14 1 142 Figure 4 indicates the importance of the plea in resolving charges, and that any appearance type can find a completed disp~sition.~~ Common charges for the top ten accused include break and enter with the intention of committing an indictable offence (15.5%, n=125), possession of stolen property valued at greater than $5,000 (9.7%, n=79), frauds of more than $5,000 (9.4%, n=76), and theft valued at less than $5,000 (8.7%, n=70). Property offences are normally charged for each separate occurrence, but it is possible that in some circumstances more than one charge may be entered. The following case study illustrates the complexity of administrative court records analysis. 43 Pleas are not always recorded in the ACCS data file. Plea information may also be genuinely missing or has yet to be stated (Canadian Centre for Justice Statistics, 2001a, 2003). 5.3.6 Detail: Tracking the most frequently charged person The most frequently accused person in the study accounted for 124 appearances and 1 19 separate charges. For one information, he appeared a total of four times. Break and enter (with intent to commit and indictable offence) was the most frequent of the 119 charges for this individual (58.8%, n=70), followed by robbery (18.7%, n=23) and possessing house-breaking equipment at 13.8% (n=17). The accused was found guilty on four charges, three (3) times for robbery and once for a breach of an undertaking of recognizance. One charge of robbery was dismissed; the remaining charges were stayed or otherwise disposed without sanction. The accused received a 45-day jail term and two- year conditional sentence on one court appearance (for offences committed over a two-day span). Previous convictions for the accused in the study period showed three separate two-year conditional sentence terms, each with an attending probation order. Figure 5 illustrates the multi-layered nature of determining precisely how an accused moves through the court system. Data are presented by the "rolled-up" charge, a charge descriptor that uses the position of each digit to specify the presence or absence of each sentencing sanction. The first digit represents the sentence of prison; a value of "1" represents "yes, sentenced to time in prison", while a "2" indicates the absence of that sanction. Table 5.12 Reading the Total (Complete) Sentence Variable p--T*-n .... .- ..^^ --.------,-..- ,...... ,.r-.,ll-rs-r-r- ^ -. - - Total (complete) sentence Type of Sanction Position 1 Prison (I=yes; 2=no) P.. P.. - r ----.--.<--w.,.----. p- ,--* .- Position 2 Probation Position 5 Conditional Sentence Reading the rolled up sentence term (Table 5.12), from left to right, probation, fines, restitution, conditional sentences and "other" sentence terms are recorded in each subsequent digit; thus, ia score of "1 12122" indicates prison, probation and restitution was ordered. If all 2s are observed (222222) then no sanctions were given, such as in the case of a stay of proceedings. Frequently, accused are sentenced to more than one term. Figure 4, for example, contains three different total sentences: "122221" (prison and other sentence); "21221 1" (probation, conditional sentence and other sentence); and "222222" (no sanction). Figure 5 Tracking the Most Frequently Accused, Detailed Analysis I I Court Date 222222 Total 21-DEC-2001 00:00:00 Date of 06-APR-2000 00:00:06 Offence 07-APR-2000 00:00:00 * Total 17-APR-2002 00:00:00 Date of 27-MAR-2002 00:OO:OC Offence 28-MAR-2002 00:OO:OC 29-MAR-2002 00:OO:OC Total 28-AUG-2002 00:00:00 Date of 03-MAR-2002 00:00:0; Offence 07-MAR-2002 00:00:00 09-MAR-2002 00:00:00 10-MAR-2002 00:00:00 16-MAR-2002 00:00:00 27-MAR-2002 00:00:00 28-MAR-2002 00:00:00 29-MAR-2002 00:00:00 Total 24SEP-2002 00:00:00 Date of 31-AUG-2002 00:00:00 Offence Total 09-OCT-2002 00:00:00 Date of 31-AUG-2002 00:00:06 Offence Total 19-DEC-2002 00:00:00 Date of 15-DEC-2002 00:00:00 Offence Total 05-MAR-2003 00:00:00 Date of 28-FEB-2000 00:00:06- Offence Total II -MAR-2003 00:00:00 Date of 03-MAR-2002 00:00:00 Offence 07-MAR-2002 00:00:00 09-MAR-2002 00:00:00 10-MAR-2002 00:00:00 16-MAR-2002 00:00:00 27-MAR-2002 00:00:00 28-MAR-2002 00:00:00 29-MAR-2002 00:00:00 Total 13-MAR-2003 00:00:00 Date of 28-FEB-2000 00:00:00- Offence Total 14-MAR-2003 00:00:00 Date of 28-FEE-2000 00:00:00 Offence Total 16-APR-2003 00:00:00 Date of 03-MAR-2002 00:00:00 Offence 07-MAR-2002 00:00:00 09-MAR-2002 00:00:00 10-MAR-2002 00:00:00 16-MAR-2002 00:00:00 27-MAR-2002 00:00:00 28-MAR-2002 00:00:00 29-MAR-2002 00:00:00 Total 07-MAY-2003 00:00:00 Date of 28-FEE-2000 00:00:00 Offence 15-DEC-2002 00:00:00 Total 15-MAY-2003 00:00:00 Date of 15-DEC-2002 00:00:0~ Offence Tntal In this example (Figure 5), three separate layers are required to "follow" one accused through the system. Substantial work is required to pull individual cases from the aggregate data from the ACCS extract. In future research, analyzing the case could take advantage of combining aggregate studies and more micro-level methods, such as a full file review. The author is involved with a separate, on-going study using police suspect files to trace marihuana production (also known as "grow-op") suspects through from investigation to the laying of charges with the Crown. Suspects' prior criminal histories and other case-specific variables will also be explored.44 5.3.7 Regional sanctions for CDS offences Table 5.1 3 (below) shows quartile ranges for Controlled Drugs and Substances offences that received at least one of the six sanctions: prison, conditional sentence, probation, fine, restitution, or other. The order of the sanctions is slightly different than that for the sentence rollup variable; conditional sentence is moved "forward" to the second item, rather than the second to last digit in the total sentence variable (as in Figure 4 and Table 5.12, above). This allows the two most serious sanctions (MSSs) to be examined more easily, and follows the layout of previous UCR descriptive tables. Table 5.13 also provides the first and third quartile scores. Like the median score (the second or 5oth percentile), each quartile represents the value for every quarter portion of the 44 The first study in this area by Plecas and associates (2002) was recently updated (Plecas et al., 2005) The ongoing study involves reviewing these police files to analyze how files that are successful in proceeding to charge differ from those that do not. The study also focuses on how cases that result in a conviction (i.e., some form of sanction) are different than those that are not successfully prosecuted. 143 distribution. The 25thpercentile (%ile) for prison terms for trafficking a controlled drug or substance in the Lower Mainland region is one day. Table 5.13 Descriptive Statistics for CDS Offences by Geographic Region, Jun 01 - Jun 03 Med 25 75 Med 25 75 Med 25 75 Med 25 75 %ile %ile %ile %ile %ile %ile %ile Ohile Cond'l 180 120 270 180 180 360 210 90 360 273 120 520 p&ln '"'365 ' *285 "385" '"-36f" -- 270 '" Fq360' * 366- pw365w p$X5- r793- "*x83- Fine 600 200. 2000 1000 367 2000 1750 1000 3000 2500 2500 . * " . - "--- -,- Res 2036 1407 ' 4986 . 1216 1219' 'i12i6wrlsir ri812"T8i2 Age 31 24 39 29 24 39 31 25 39 35 27 41 Cond4 90 60 180 60 30 203 30 14 113 75 30 120 ' " b &%' n7 -- pro~~' 360 180" 365 770 I i90 360 ' 360 365 ' y45-* F-1-80%? wX3861 Fine 250 150 500 200 100 300 300 200 500 325 200 1000 r- '2.3. " ~ * *-* ".,-.-..*-2 q:pm" -ns-- --.y Res 200 200 '200 . Age 29 23 37 28 22 37 27 22 36 31 24 38 Cond4 180 90 270 180 120 360 180 90 180 180 180 180 ~Fob'n 365 ' 360 ' 365 a 360 ' 2'70 365" ' 360 * 360 365" T63- '""293- * 365 Fine 500 200 800 625 300 1000 750 600 . 1000 1000 1000 % " Ft-e. " - '--"-'" F --FT" -. ?.-. ? des 50 50 ' 50 12 120 150 . Age 30 24 38 28 22 39 26 21 37 32 25 38 Cond'l 180 128 270 270 1130 360 300 195 360 180 120 180 Prob'n 365 360 540 365 248 705 " 360 360 363-'-195 " "150" 365 Fine 2500 1000 3000 1500 1000 3250 2000 775 2875 2000 1500 3875 Res 2000 1465 4658 1271 1271 1271 1216 867 2052^'"1812 i812 . Age 34 28 41 34 26 41 36 28 42 35 27 41 This value changes to 90 days for the 75th percentile, which indicates that at least 75% of all prison terms for drugs trafficking in the Lower Mainland are for three months or less. Although the median prison length for trafficking is lowest in the Mainland, it holds the highest median prison term for production of a controlled substance. However, when looking at the third (75th)quartile, Vancouver Island and the lnterior show the highest prison terms (270 and 273 days respectively). Vancouver's top 25% of scores, on the other hand, start at 180 days. Both the lnterior and Vancouver Island have higher median conditional sentence scores than the other regions. 5.4 Total sanctions Previous sections of this study look at the ranges of sanctions by median and quartile scores for various combinations of offence categories. It remains, however, to consider the complete picture of all sanctions in combination across these same offence categories. It is clear that most individuals appearing before the courts will have more than one sanction for each finding of guilt. When one seeks answers to questions about what is "being done" about sentencing, one must recognize that using the MSS method will under report less serious sanctions, which, nevertheless, are an important part of the total sentence. After all, people are sentenced, not cases.45 Although it is impractical to examine the values for each of the possible combinations of sanctions by offence type, it is possible to describe how often the various sanctions were combined into one 45 The author was duly warned by a member of the Court Services Branch, which administers the JUSTIN database, that "Sheriffs don't jail cases". record for the offence categories of interest. Table 5.14 provides a frequency distribution of selected total sentence combination observed for each region for the study period. Approximately one half of the sentence combinations are not shown due to low counts (to save space, combinations had to be used in at least 0.5% of all dispositions to be included). When considering the entire dataset, the Lower Mainland uses prison as a single term more often than the other regions. Approximately 7.3% of all cases (not all sentence combinations are shown in the Table below) contain at least prison and probation as sanctions. Table 5.14 Sentence Rollup by Region, All Charges, Jun 01 - Jun 03 "? , - + - ? .- - '. Sentence Regions Total (Rollup) L. Mainland V. Island Interior North "" -- , ..% . .9.r.. >%. - " -.,* s 112221 (pris, prob, 0th) (Sount 1369.0^~' 692.0- 456.r" 250.r Fm~ % within regions - * 112222 (pris; prob) I %within regions 122211 (pris, cond, 0th) C( % within regions 122212 (pis, cond) Cc %within regions 122221 (pris, 0th 122222 (prison) % within regions 21 1221 (prob, $, 0th) Count % within regions sentel nce ' Regions (Rollu P) L. M.ainland V. Island 21 221 2 (prob, cond) :, Count 346.0 77.0 17.0 101 .O 541.0 7 p.- a- r- n,r-w " w Y w- v -, - ,-- --- .--,,- % within regions 0.7- F' 0.4 0.2 1.O 0.6 21 2221 (prob, 0th) Count 3552.0 1525.0 737.0 623.0 6437.0 - - -.-- CN. .PI 7-w *ICXIIw""- - -I - ---.X/ 7.X . < - -- % within regions 6.FmV* 8.5 8.3- ' --' 6.3 7.3 , 221222 ($ - fine) Count 324.0 213.0 109.0 151.0 797.0 22221 1 (cond, 0th) Count 608.0 527.0 203.0 109.0 1447.0 f I' ' % within reg& Count -.--~. - . ' % within regions 222222 (no sanction) Count 301 66.0 10056.0 501 8.0 .5920.0 51 160.0 m- -..- - rT------. . "* -7 ---.-A- --" - -, - ". 7 % within regions 58.7 56.1 56.7 60.1 58.1 ' Total* Count. 51428.0 17929.0 8854.0 9854.0 88065.0 - % within regions 100.0 100.0 100.0' -' 100.0 ' 100.0 *Totals reflect the complete data. Individual sentence combinations comprising <0.5% of total are not shown. (pris = prison; prob = probation, $ = fine, cond = conditional sentence, 0th = other). The Lower Mainland is slightly higher than the regional rate, at approximately 8%. (One can see the first two rolled up sentence categories sum to 7.1 % in Table 5.14; the remaining 1% is not displayed.) Table 5.14 highlights the two largest combinations of prison and probation. Just over 22% of sentences include some combination of prison (1% are not shown in Table 5.14). This Table provides a glimpse of how sanctions other than prison are used. Recall that the MSS depiction of sentencing obscures these combinations. Between 30-40% of all dispositions result in some form of sanction-the composition of which is varied-approxirnately one half of these sanctions involve prison and at least one other sanction. Of all sanctions (36,905), 19.3% (n=7113) are sentenced to prison alone. As a final example of complete sentences, drug-related sanctions are shown in Table 5.15. Unlike the previous Table, the complete data are reported below to facilitate a discussion of drug-related charges and dispositions in the next Chapter. As with the other charge categories, stays of proceedings represent more than half of all dispositions. When prison terms are given, Vancouver and Abbotsford (the Lower Mainland region) tend to use fewer additional sanctions. Fines and restitution are rarely used in connection with drugs offences across all jurisdictions, although this sanction is used more for this offence category than the total charge data. Table 5.15 Sentence Rollup by Region, Drug-Related Charges, Jun 01 - Jun 03 ,.-7""".- <--- .-"----"*-,T --m - y--.'-. . , % . b . -. " ,'.- -- . "-. RolKp regrons Totiil- '- L. Mainland V. Island Interior North ----.-..w,"-c-r-, - I...-.,-r -%"-,--- ,..X-,,-% ,mpl.a r.,-S.T.. <- -- -mil (pris, prob, $, cond, 0th) Counl 0.0- " . 4.0 " 0.0 " 0.0 " 4:0 O/O within regions 0.0 0.2 0.0 0.0 0.0 --- 2-w-w - .--.---- ,- - w I"- '-?*ii, a- . - nn" "" " 'Tm"~prs, pr05, $, 0th) Count 0.0 ' -0.0 " 1.0 1.O Oh within regions 0.0 0.0 0.1 0.0 r-m~?-s--*-n"*~ WP - 9..- .,'- -I -o,o - vr,,.v , .-, ..- - "'rn(Ki"iob, rest, cond, 0th) Count 0.0 1.0"- ' 0.0 1.O Oh within regions 0.0 0.0 0.1 0.0 0.0 "--- .--.#.'."*....",**-*".- - ...& + -4 112121"9"p"rE,"Fr ob, rest, 0th) "Gunt ' 1.O ' ". 0.0 13 0.0 * ' 2.0 % within regions 0.0 0.0 0.1 0.0 0.0 ?.-%--v-" - - .- " "22:b'- 1 - - 112211 (piis, prob, cond, oih)- - Czunt '. 19.0 3.0 7.0 51.0 %within regions 0.3 0.8 0.3 1.0 ----- 7 -m.%-n*-*r-.r,a -* ..,?.* .". --.." - t- - -7- 112212 (pr~s,prob, cond) Count 4.0 " 4.0 0.0 -7 0.0 % withirI regions ' 0.1 0.2 0.0 0.0 I7 '--*--.-wTm -----. - -,*?-%\-r<--" -T- - *..-"v*-x -- 4. - ." , - 112221 (p ris, prob, 0th) Thnt 1 % within regions ! --". .. rinnn (r: ' 'Co~nt I I % within regions 2.0 0.4 0.2 0.9 -- .- ^ --- - . "- ".-*-- -.-.'.-- -.-.-- ..- - T"--" --." - 12121 1 (pris, $, cond, 0th) Count 0.0 3.0 " 0.0 - ' 0.0 % within regions 0.0 0.1 0.0 0.0 - -... -. .."*?-, 121221 (pis, $, 0th)- ' '~&nt 7.0- 3.0 1.0 0.0 % within regions 0.1 0.1 0.1 0.0 ------.-- - .. I 12l-222 (Fris, $)- Count 2.0 (1.0 % within reglons 0.0 C1.0 - -- "122121 Tp ~ris,rest, 0th) ' ~ount 1.O 21.0 O/O within regions 0.0 0.1 0.0 0.1 . " * - 122211 (pris, cond, 0th) Count 107.0 69.0 13.0 3.0 % within regions 1.4 3.0 1.4 0.4 - 7 122212 (pris, cond) Count " 6010 0.0 0.0 0.0 % within regions 0.8 0.0 122221 (pris, 0th) Count 559.0 794.0 47.0 % within regions 7.4 8.5 5.0 122222 (pris) Count 553.0 34.0 12.0 % within regions 7.4 1.5 21 1221 (prob, $, 0th) Count 38.0 35.0 %within regions 0.5 1.5 21 1222 (prob, $) Count 7.0 ' 4.0 % w~thinregions 0.1 0.2 2121 11 (prob, rest, cond, 0th) ' Count 7.0 0.0 4.0 0.0 11.0 % within reglons 0.1 0.0 212121 (prob, rest, 0th) Cou % within regions 0.0 0.0 nollup reglons I Iow L. Mainland V. Island Interior North 21221- -- 1 -. 81- .O- 55-- 0- 41.0 3.0- .- 180.0 hob.,, 8 cond.- 8, 0th) Count .->* < <* ------y..l -'--- .w,- - " ' '"'*" 2.4-" w-w- 4.3- -0.4- mw-- % within regions 212212 (prob, cond) Count 28.0 2.0 1.0 0.0 31.0 *.* . 7- r . -- , ,- 2221 12 (rest, cond) Count %within regio 222121 (rest, 0th) Count egions 22221 1 (cond, 0th) Count % within regions 222212 (conditional) Count %within regions 1.( 222221 (other) Count 59s % within regions 0.t 222222 (no sanction) Count %within regions Count rithin regions 150 5.4.1 Charge quotients by jurisdiction As the types of charges observed across geographic regions has been suggested in other studies (Birkenmayer is Besserer, 1997; Turner, 1993) as being a possible explanation for variation in sentencing patterns, the following section explores the relative charge mix for each jurisdiction. The charge quotients are based on the Brantinghams' (1995; 1998) work on location quotients (as discussed in Chapter 3, above). The following Figures are read by observing how close to (or far away from) a score of 1.O, where 1.0 indicates that the particular issue in question is present n perfect proportion to its relative share of all charges for the region and the entire study as a whole. Figure 6 UCR C.C. Driving Charge Quotients by Region, Jun 01 - Jun 03 CC Driving Charge Quotients By Region For example, Criminal Code driving offences in Abbotsford (Figure 6) are nearly proportional to what that jurisdiction shoulcl contain, all things being equal. Vancouver, on the other hand, "sees" approximately half (49%) of its "share" of all driving-related charges through to a finrl disposition. Kelowna, Campbell 151 River and Prince George report between 60-109% more driving charges in their respective jurisdictions than one would expect. Figure 7 UCR (Federal Drug) Charge Quotients by Region, Jun 01 - Jun 03 Drug Charge Quotients By Region 1.40 1 For drug-charges, Vancouver (I27%) and Campbell River (I20%) possess disproportionately more records than one would expect. Prince George, Abbotsford and Salmon Arm dispose of proportionately fewer drugs charges than does Kelowna or Victoria. Other crimes (Figure 8) are more typical in their distribution across the jurisdictions with the exception of Abbotsford (133%) and Prince George (112%). Figure 8 UCR (Other) Charge Quotient by Jurisdiction, Jun 01 - Jun 03 Other Crime Charge Quotients By Region Prince Prince Salmon Ab botsford Kelowna Vancouver Victoria River George Arm l~eriesl 1.33 0.75 0.84 1.12- 0.84 1.01 0.98 0.87 Other federal charges Figure 9 (below) show the disproportionate concentration of fishing regulation for two crf the study area's more remote jurisdictions. Prince Rupert, for example, is almost entirely dependent upon thi: natural resource, and as such, one would expect that charges resulting from contraventions of related acts to be more prominent relative to other charges. Figure 9 UCR (Other Federal) Charge Quotient by Jurisdiction, Jun 01 - Jun 03 ~ Other Federal Charge Quotients By Region 153 If Prince Rupert has so many other federal statute offences, logically, it must be on the lower end of the spectrum for different offence categories. Lower rates for property crime in Prince Ruperl: (Figure 10 and Figure 13) appear to make up for this imbalance. The remairing jurisdictions are consistent, with Vancouver and Victoria seeing slightly more property offences than the other areas. Figure 10 UCR (Property) Charge Quotient by Jurisdiction, Jun 01 - Jun 03 Property Charge Quotients By Region The North-Prince Rupert (195%) and Prince George (107%)-sees more violence charges than other regions in the study. Other than the North, the only jurisdiction reporting more violence charges than expected is Campbell River. 154 Figure 11 UCR (Violent) Charge Quotient by Jurisdiction, Jun 01 - Jun 03 Violence Charge Quotients By Region 0.00 Vancouver Victoria Arm The next two Figures combine the UCR charge quotients for each jurisdiction. This allows for a quick inspection of the local charge mix. Figure 12 UCR Charge Quotients, by Jurisdiction, Jun 01 - Jun 03 Abbotsford UCR Charge Quotients 1.50 , I I Other Property Violence Federal 0 68 0.84 0.98 I Campbell River UCR Charge Quotients 4.00 3.00 -- 2.00 -- I00 -- I 0.00 I I I I I Dnwng Drugs 1.20 / !series1 1.87 I Kelowna UCR ChargeQuotients Prince George UCR Charge Quotients 100 -- - I I 0.50 - 0.00 Other Other Dr~wng property ~~olence Drugs Cnrnes Federal Series1 1.62 0.52 1.12 0.23 0.90 1.07 Figure 13 UCR Charge Quotients, by Jurisdiction (continued) Prince Rupert UCS Charge Quotients 1 m I m 000 - - 1 Dnung 1 Drugs I 0th~1 Other 1 Property 1 V~olence Victoria UCR Charge Quotients 1 00 0 50 0.00 1 Property 1 Violence Vancouver UCR Charge Quotients 1-I Salmon Arm UCR Charge Quotients 5.5 Focus on Vancouver Over the two-year study period, Vancouver Provincial and Supreme Courts adjudicated 39,813 completed dispositions. Table 5.16 contains a breakdown of disposition categories for the entire period. The "other" category is included, even though it includes special dispositions, verdicts, and "other" administrative outcomes. These are normally not considered "final" dispositions as a general rule; however, despite their formal status as administrative or in- process court appearances, accused cai plead at any time, as shown in Table 5.17. Table 5.16 Dispositions for Vancouver, Jun 01 - Jun 03 "" " " .* . -- - - - . - "--'T?w-. rr)talPr'lRrF1'-.m- Frequency Percent Found guilty and convicted as charged 16605 41.71 e 7. Acquitted guilty lesser included Acquitted of offence charged Stay (by AG or court) Withdrawn " - Discharged Acquitted on account of mental disorder 24 0.06 Waived out of province 250 0.63 . - 'W. ..*m.-w S~.- Other 1637 4. I Total Appearance Interim rrerlm. bttness I rial utner Totai Release Inquiries Hearings Hearings Appear- Disposition Hearings ances 0 143 250 - .'?."" * .. 50 1 925 1637 Total 321 1 174 782 1 28482 39813 After "out of scope" dispositions are removed, we are left with our true base total of 39,813. Approximately 86% percent (n=32,704) of charges involved males. Gender distributions for the two-year study period are consistent with available ACCS data for all British Columbia in 2002 (85%) (Table 252-0023 of the ACCS). At the time of data collection, the most recent full year of data reported to Statistics Canada was 2002. Two periods were added to either side of the 2002 calendar in order to bring the total study period to two years. Timing of the author's data request to the Judicial Access Committee, which governs access to non-public court records in British Columbia, dictated the starting period (June 1, 2001). To collect data for a full 24-month period, the author requested and 159 received data through to the end of May 31, 2003. Table 5.18 breaks down the monthly totals for each year. Table 5.18 Vancouver Dispositions for each time period ---7.- ----v -.=- Date Range GuiltylGLI Acquitted Stay Withdr awn Total Jan-May 2003 (5 months) 3886 178 4121 276 846 1 -?-- -> -- -= - . , - . .. As each year has a different num~erof months to accumulate court records, we calculate monthly averages for each year. Figure 14 suggests that, on average (i.e., total recordslnumber of months in period), each of the three time segments is consistent. As these time segments are similar, we report on the full two-year period when discussing total counts. In using two years of data, we are able to make more reliable comparisons between sentencing variables. These totals are not directly comparable to Statistics Canada data. By selecting only 2002 records for Vancouver and using only the MSS aspect of the data, it is possible to make qualified comparisons of Vancouver trends to British Columbia and the other provinces. Figure 14 Disposition Rate (#Dispositions/ #months per period) Monthly Rate of Dispositions 5.5.1 General sentencing outcomes Table 5.19 includes basic descriptive statistics for the standard sanctions for the study period. Other sentences (types of prohibitions, for example) are not included in this analysis, although these details are available in the JUSTIN extract. As mentioned in a previous section, mean (average) scores tend to exaggerate sanction quanta. Sanction maxima also require a brief discussion. The ACCS records life sentences are coded as 7,777 days (21.3 years). Although this is an arbitrary score, it does reflect the severity of such a term, and distinguishes it from other terms such as 14 years (5,110 days). Terms of up to 14 years are captured in actual days, while terms greater than 14 years, but not "life" are set, again, arbitrarily, to just over 18 years (6,666 days). Extreme, but nevertheless valid scores are left in these data, as are jail sentences of "one day". To exclude either extreme is to misrepresent the extents of imprisonment I61 usage in Vancouver. As with previous sections, indeterminate sentences and dispositions without sanctions are excluded. Table 5.19 Sentence Terms (2 Year Descriptive Statistics) N Minimum Maximum Mean Std. Deviation Length of Prison 892 1 1 7777 131.65 459.049 Length of Cond'l 2869 6 220.49 Sentence 730 172.090 Length of Probation 6845 1 1095 41 1.96 205.308 Amount of Fine 938 2 20000 622.27 1157.924 Amount of Restitution 423 25 312643 18229.57 48742.533 Valid N (listwise) 0 Table 5.20 Vancouver Sanctions, by Percentile Scores, Jun 01 - Jun 03 Percentile 25 Median Percentile 75 Percentile 95 Length of Prison 1 30 90 729 Length of Cond'l 90 270 Sentence 180 729 Length of Probation 360 365 540 7 30 Amount of Fine 150 400 600 2000 Amount of Restitution 763 3080 12408 131833 - 5.5.2 Prison terms Prison terms averaged approximately 132 days. However, averages are misleading when distributions are as skewed as those in Table 5.19 (and in most sentencing variables). While the average may be "131.65" days, by far the single most frequent (or modal) sentence is a prison term of one day (n=2755, or 30.9% of all prison sentences). A more useful description of sentence lengths is to identify the "middle" of the distribution, that is, the median. In the case of prison, this value occurs at 30 days. Over 90% of all sentences for the study period are 270 days, or less. These prison terms do not include dispositions where the finding was guilty, but for which no prison term was indicated (i.e., guilty and prison term = 0). Time served is recorded for 864 cases, of which 828 (96%) show prison terms of zero days. There are, however, 807 records that posses both a "time served" designation and a valid prison term of one or more days, and of these cases, 425 (52.7%) show prison sentences for one day. Stated differently, of the 2755 one day terms, 15.4% (425) are also scored as including "time already served". This leaves the large majority of the one day (84.6%) sentences as part or all of a final disposition. As prison terms of a single day account for nearly one-third of all prison terms in Vancouver, it is necessary to briefly review the types of charges that attract this sentence. Although "time served" is only to be recorded in the ACCS when there is no prison, it appears that in some situations, Vancouver courts are recording both (Canadian Centre for Justice Statistics, 2001a, p. 39). For the 425 records that are both "time served" and length of prison is "one day", it is likely that most of these are indications of "time served", rather than the one day term as being a true sentence. However, some charges do receive a single day as the total time imposed. Table 5.21 provides a full break down of all charges that received a single day jail term. One day jail terms are used most often for three types of offences: theft under $5000, "other" Code offences (breaches, failure to appear), and C.D.S.A. offences. Table 5.22 contains the top ten charges receiving one day terms. The top ten offences account for over 80% of all one day terms for Vancouver. Table 5.21 One Day Jail Terms, by UCR Level 2, Vancouver, Jun 01 - Jun 03 .- ...... ,.-v-"..." ..---m.x*c"~,..., .** *--: ..,.--v-----,-,, "-p.' .,,-\. - e*,' ,w4. -.-.,-.r--w-m UCR Level 2 Count Pcf TKFr THEFT UNDER $5000 929 33.7 33.7' .. ,- . % --..--'-"--- .--. >---., .I".'-- "- * OTHER C.C. - (not traffic, breech, fail to appear, etc.) rm 869 "31.5 ' 65.3 DRUGS & SUBSTANCES 424 15.4- 80.7 . ------.- . -- ASSAULT ' -> BREMANDE OFFENSIVE WEAPONS 30 1.1 96.8 " --.- -., -- . -. - "-~-.22- '---o:g ".If-97:6- ' MOTOR VEHICLE THEFT PROSTITUTION 21 0.8 98.4 -. e.. OTHERDRIVINGOFFENCES 13 0.c 'w-98.8 ROBBERY 9 0.3 99.2 -" -.-tv --- OTHER FEDERAL STATUTES :(NO~ traffic) 8' 0.3 99.5 DANGEROUS OPERATION 7 0.3 99.7 '" fT" -111-q pJ.rr ". IMPAIREDDRIVING 4 0.1 99.9 THEFT OVER $5000 4 0.1 100.0 . - - Total The majority of one day jail sentences (68.6%, n=l890) received no other sanction. The most common sanction used in combination with a single day of jail is probation (23.3%, n=643), the majority of which are for probation alone Table 5.22 One Day Jail Terms, by UCR Detail, Vancouver, Jun 01 - Jun 03 qmn;mr..--..--\. .. ..",, ., ",A.-.;-r.-.r--- . .-...... - .. ,.-. --. .-.- . . ... ^ .n--,..-r .--- .,- .,-- ., . - . ,, ,- " . . .. , .. . . ., ., ., . , .. Count Pct Cum% BREACH OF UNDERTAKING OF RECOGNIZANCE 217 7.9 57.7 7.0 ' 64:8 INTENT TO TRAFFIC IN SUBSTANCE 10 -. _*-..-?_- -C -----. - "M~&H~EFTO PROP( $5000 ' 6 POSS STOLEN PROPERTY - < $5000 65 2.4 82.1 . -?--a- *" ".<.. - 9 " "" .- POSS-STOLEN PROPERTY - ;$5000 52 1.9 84.0 5.5.3 Probation Probation is less frequently used by the courts than prison (Table 5.19, above), but its lengths are much longer. As with prison, one term is used far more frequently than all other possibilities. In the case of probation, a term of one year or less represents approximately 72% of all probation term lengths, and this term also serves as the modal value 5.5.4 Conditional sentences, fines and restitution The remaining three sentence outzomes are less frequent than either prison or probation (Table 5.19). Conditional sentences (n=2869) occur between a minimum of six days and two years, the legal maximum. The modal conditional sentence is 180 days, while the average length is approximately one month longer, at 220 days. Fines (n=938) and restitution (n=423) appear to be infrequently used and are highly variable in amounts given. Fines range between a symbolic $2 and $20,000, with $400 as the modal amount (Table 5.20). Restitution is even more dispersed, with a maximum amount of over $300,000- over 33% greater than the next largest value. Of all restitution orders, half were for $3,000 or less. 5.6 Selected charge categories, Vancouver (Jun 81 - Jun 03) At the most general level, the UCR {Uniform Crime Report) uses the following offence categorizations; more de,:ailed levels are possible, but only selected categories will be included in this report. Again, as these data are for 24 months, comparisons to any other timefrar~ewill need conversion to common units. Table 5.23 General UCR Charge Categories, Vmcouver, Jun 01 - Jun 03 .- +--.--" Frequency ~erce;G ' valid Percent DRIVING OFFENCES 1659 4.2 4.2 *, . -- - FEDERAL DRUG' 6574 16.5 16.5 OFFENCES OTHER CRIMES 11 374 28.6 28.6 PROPERTY CRIMES VIOLENT CRIMES 591 1 14.8 14.9 Valid Total 39767 99.9 100.0 Missing 46 0.1 Total 3981 3 100 The next table breaks down "Federal drug offences" into specific charges. percent ' valid' Percent INTENT TO TRAFFIC IN SUBSTANCE . 2902 44.4 44.4 " - - -. ,. . r .. ' TRAFFEKIKGIN-SUBSTANCE-~-~ 1717- 26.3 26.3 POSSESSION OF SUBSTANCE 1310 20.1 - 20.1 F--l, .- , --*- " * r'- --- .= -?' PR~D~CTI~N~O~~~B~'~ANCE--" --= 601 9.2 9.2 Total 6530 100 100 Possession for the purpose of trafficking (known colloquially as "intent to traffic") in a controlled substance ( ControVed Drugs and Substances Act, s. 5(2)) includes all types of controlled substances, including marijuana, cocaine and heroin. s. 5(2) charges amount to over 44% of drug offences. The second largest drug offence type involves trafficking in a controlled substance S. 5(1), at 26%. Combining these charges, we see that over two-thirds of all drug charges involve trafficking for the study period in Vancouver. Simple possession of a controlled substance (s.4) amounts to 20.1%. For the next three tables, we include theft of utilities (C.C.C. s. 326(1)(a)) in drug- related offences due to their linkage to production offences (C.D.S.A. s.7), especially those associated with marijuana grow operations (Plecas et al., 2005). Both of these last categories combined account for approximately 12% of cases. Theft of utilities is reported in these tables for reference only. In order to remain consistent with the more usual definition, all subsequent drug total calculations will not include theft of utilities. 5.6.1 General UCR & drug-related offences by disposition category The following tables break down both the general and drug-related charge categories by final disposition (guilty, guilty of lesser or included offence, acquittal, stay, withdrawn, dismissed, discharged and not criminally responsible). Both Table 5.25 and Table 5.26 contain the contingent distributions of final dispositions for (1) the general UCR categorization scheme, and (2) the more detailed, drug-related statutes. Each contingency table contains the raw count for each disposition category (guilty, acquitted, stay, etc.) and the relative percentage it represents of the total for each offence categorization (federal drugs in the case of Table 5.25, or possession of a controlled substance in Table 5.26, column 2). Marginal totals are reported across both dimensions, while the grand totals are located at the bottom right of each table. The total federal drug offences in Table 5.25 (n=6112) is slightly lower than the grand total for Table 5.26 (n=6293) as the former does not include theft of utilities (n=21 Guilty dispositions for federal drug offences (column #2, Table 5.25) account for 47.1 % (n=2879) of all dispositions for that offence grouping. This proportion is higher than all other guilty findings described in Table 5.25, with the exception of property crimes (57.6%; column #5), but is close to the average total for all guilty dispositions (45.2%, n=17,141; end column). This would suggest that when federal drug offences go through charge to a final disposition, a guilty verdict is a strong possibility. However, stays are a close second at 45.8% (n=2797). This is not atypical, for stays are common across all offence 46 Further, as contingency tables rely upon valid (i.e., complete) data for both of the dimensions under consideration, table totals may vary from the totals for any one dimension when considered separately. categories. The average rate for stay of proceedings for all offence categories is 49.1 % (n=18600). Stays for federal drugs charges are, however, slightly lower for each category, except (again) for property offences, at 39.3% (n=5341) Table 5.26 breaks down federal drug offences into specific statutes (see also, Table 5.24). As with the previous table, the two most interesting dispositions are guilty and stay of proceedings. For guilty dispositions, the highest rate is for trafficking in a controlled substance (62.8%, n=990), followed closely by possession (59.2%, n=750). Both of these offence types are at least 10% higher than the overall average for guilty findings (46.2%, n=2909). Production of controlled substances is remarkable for its low rate of guilty findings (28.4%, n=159) and high rate of stays (59.1%, n=331). This pattern is similar to the intent to traffic in a controlled substance, which shows rates for guilty and stay findings of 36.5% and 55.3%, respectively. The next section discusses British Columbia as a whole, and how it compares to the rest of the provinces that report Adult Criminal Court data to Statistics Canada. Table 5.25 General (Level 1) UCR Categories by Disposition, Vancouver, Jun 01 - Jun 03 General UCR Cateaories FEDERAL OTHER DRIVING DRUG OTHER FEDERAL PROPERTY VIOLENT OFFENCES OFFENCES CRIMES STATUTES CRIMES CRIMES Total DlSP GuiltyIGLI Count 554 2879 3960 4 1 7818 1889 17141 % within Level 1 34.8% 47.1% 36.2% 20.8% 57.6% 34.5% 45.2% Acquitted Count 56 205 184 2 161 400 1008 % within Level 1 3.5% 3.4% 1.7% 1.O% 1.2% 7.3% 2.7% Stay Count 899 2797 6551 141 5341 2871 18600 Oh within Level 1 56.4% 45.8% 59.9% 71.6% 39.3% 52.4% 49.1% WDldismldischglNCR Count 85 23 1 246 13 256 318 1149 Oh within Level 1 5.3% 3.8% 2.2% 6.6% 1.9% 5.8% 3.0% Total Count 1594 6112 10941 197 13576 5478 37898 %within Level 1 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% Table 5.26 Drug-related Charges by Disposition, Vancouver, Jun 01 - Jun 03 ucr dFrelated intent to traffic possess production of theft of trafficking in in substance substance substance electriclqas substance DEF DEF DEF ltelec DEF DEF Total DlSP GuiltyIGLI Count 977 750 159 33 990 2909 % within ucr drug-related 36.5% 59.2% 28.4% 15.6% 62.8% 46.2% Acquitted Count 96 27 36 11 45 215 Oh within ucr drug-related 3.6% 2.1% 6.4% 5.2% 2.9% 3.4% Stay Count 1481 469 331 154 491 2926 % within ucr drug-related 55.3% 37.0% 59.1% 73.0% 31.2% 46.5% WDldismldischglNCR Count 125 2 1 34 13 50 243 % within ucr drug-related 4.7% 1.7% 6.1% 6.2% 3.2% 3.9% Total Count 2679 1267 560 21 1 1576 6293 % within ucr drug-related 100.0% 100.0% 100.0% 100.0% 100.0% 100.0% 5.7 Provincial comparisons (2002) Throughout this dissertation, charge rates are presented as a backdrop for a more complete sentencing picture. While the specific process by which charges are laid differs across provinces, charge rates do provide a sense of the relative proportion each crime type possesses at the provincial level. British Columbia, Quebec and New Brunswick police departments need the Crown's approval before laying charges, while the police in other provinces and territories do not need prior approval from Crown. Charge data are collected directly by local police forces and then sent on to Statistics Canada. These surveys of police records make up the Uniform Crime Reports (UCR), from which detailed charge information can be collected. The UCR captures a range of specific details about each charge, including what type of drug was present in drug offences. This is different from the court data that make up the ACCS-and thus, the Vancouver data. The ACCS records do not specify what kind of drug was involved in each charge, but rather, only the statute and relevant subsections. For example, a charge under the Controlled Drugs and Substances Act, section 5(1) could include, trafficking in any controlled substance, such as cocaine, heroin or cannabis (i.e., any substance outlined in Schedules I through IV). The provincial charge rates (per 100,000 adults) for selected provinces are drawn from the Adult Criminal Court Survey, Table 252-0014.~~Figure 15 shows Saskatchewan (230) and British Columbia (226) as minimally ahead of 47 Table 252-0014 is available from Statistics Canada's website, at http://estat.statcan.ca/. 171 Ontario (218). Each of these three provinces tops the Canadian charge rate of 198 per 100,000 adults. Figure 15 Charge Rate, Total Drugs, Selected Provinces Offences: Total, drugs Statistics: Rate, adults charged Date: 2002 T ~ndlandand Labrado I 0 280 Source: ACCS Table 252-0014 According to the Vancouver Police Department, clearance rates for 2002 suffer from a combination of data collection and reporting inconsistencies, most of which arose out of the conversion to what was at the time, the new PRIME reporting system (Vancouver Police Planning Research and Audit Section, 2003). For this reason, Vancouver charge rates are not included here. Figure 16 indicates the provincial charge rates for cannabis, while Figure 17 compares the historical charge rates for cannabis, cocaine and heroin. Note that the Figures below omit portions of the Maritimes where either no data are reported or the totals are very low. British Columbia is in step with the rest of Canada for total cannabis charge rates, but dramatically outpaces most others where cocaine and, especially, heroin, are concerned. For specific charge rates for each province, see Table 5.32, at the end of this Chapter. Unfortunately the JUSTINIACCS extract does not specify what kind of drug was involved for each charge classification. For this reason, the extracted data are not perfectly linkable to the provincial charge data which do contain details regarding the type of drug involved (as seen in Figure 17, for example). Figure 16 Charge Rates for Cannabis, Selected Provinces Offences: Total, cannabis Statistics: Rate, adults charged Date: 2002 T Saskatchewa > L New Brunswick a F British Columbi Cn 0 8 Prince Edward lslan Newfoundland and Labrado 0 200 Source: ACCS Table 252-0014 Figure 17 indicates that the ten-year British Columbia rate follows a similar trend line as the rest of Canada, although both cannabis and total drug charge rates are higher. Figure 17 Selected Drug Charge Rates, 1992-2002 Selected Drug Charge RatesJ992-2002 Canada; Total, dtugs [vi3937672] v British Colum BC and Canada Source: ACCS Table 252-0014 Figure 18 Charge Rates for Cocaine, Selected Provinces Offences: Tota I, cocaine Statistics: Rate, adults charged Date: 2002 T Newfoundland and Labrador @-1- 0 63 Source: ACCS Table 252-0014 Figure 19 Charge Rates for Heroin, Selected Provinces Offences: Total, heroin Statistics: Rate, adults charged Date: 2002 T British Columbia Ontario % L a E Manitoba m o Saskatchewan 6 Alberta Newfoundland and Labrador k!0 2 4 6 8 10 12 Source: ACCS Table 252-0014 It is clear from the Figures above that British Columbia differs in its rates of charging for specific types of drug offence. British Columbia charges heroin- based offences far more frequently than other provinces. For a brief look at provincial rates for various property and violence offence charge rates, see Table 5.32, below, at the end of this Chapter. British Columbia is also markedly different from the rest of Canada in its conviction rates (per 1000 population) for trafficking in all controlled drugs. British Columbia is the only province in 2001 and 2002 where trafficking conviction rates outnumber possession conviction rates, as shown in the following Figures (BC Stats, 2004). Figure 20 2001 Drug Conviction Rates (Selected Provinces) 2001 Drug Conviction Rate I YukonVan BC Alta Sask Ont NS PEI NFL For 2001, no Vancouver data are available for the full calendar year, so rates are not calculated in Figure 20. Figure 21, however, shows the conviction rate (per 1000 persons charged) for Vancouver in 2002 as following the same trend as British Columbia, but even more pronounced. Vancouver's conviction rate for possession is similar for the rest of the jurisdictions, but at 7.7 per 1000 charges, is more than double the rate for Ontario (3.4) and is well above British Columbia's rate (4.5). Figure 21 2002 Drug Conviction Rates (Selected Provinces) 2002 Drug Conviction Rate 1 o Drug Possession I Drug Trafficking 1 YukonVan BC Alta Sask Ont NS PEI NFL Possession and trafficking characteristics are examined in more detail in the following section. 5.7.1 Sentencing patterns by specific charge While the previous section describes Vancouver dispositions by general and drug-related offence categories, this section provides a detailed look at each drug-related sentence, and where data are available, provincial charge rates are included for context. For this, and each subsequent table in this section, the "Total N" refers to the totals for all dispositions associated with each Controlled Drugs and Substances Act category of interest. Recall that this total includes all dispositions, including stays and acquittals. This rate is reported as "% of N" to illustrate how often charges under the various C.D.S.A. categories go through to a sentence. The "% of cases" values are based on the total number of valid sentences (i.e., those with at values of 1 or greater) for each C.D.S.A. category. These values are highlighted for ease of interpretation. These sentences represent total counts, and are not restricted to the single most serious sentence or sanction (MSS). 5.7.1.1 Possession for the purpose of trafficking (Jun 01- Jun 03) For the study period, there are 2,67948incidents where the most serious charge is possession of a controlled substance for the purpose of trafficking (C.D.S.A., s.5(2)). Table 5.27 Possession for the purpose of trafficking in a CDS (Statistical Summary) . - *.- - .. TRestitution I$) # of cases (1 150) Valid , 300 510 % of N 11.2% 19% % of cases 26.1% 44.3% , -- . ". Mean 208.6 1:30.0 Median 180 90 -- -. Mode 180 1 Percentiles 25 120 30 50 1-80 90 75 270 150 Prison terms are found in 510 instances, the most common of which is a single day custodial term (21 % of all prison terms are one day in length). Moving beyond one day terms, we find that half of all 510 prison sentences are for 90 days or less. One quarter of these terms iare for 30 days or less, while a full three-quarters of prison terms for the study period are for 150 days or less. The 48 Missing (cases without values to calculate) are not shown. The total N (2679) differs from the calculated case total (1150) as each offence category "loses" cases due to the lack of valid data to include in the statistics. Conditional sentences were given in 300 of all (2679) cases (11.2%); however, of all sentences given for intent to traffic in a CDS, conditional terms were given 26.1% of the time. (The last calculation is based on a denominator of 1150, not 26'79). longest term given during the study period is 6 years, while approximately 5% of prison sentences for intent to traffic are for' at least one year or more. Probation and conditional sentences occur at about the same rate for intent to traffic charges. Probation terms are approximately double the length of conditional sentences (one year and six months, respectively). Fines and restitution are not commonly used for this .:ype of offence. 5.7.2 Possession of a controlled substance (Jun 01- Jun 03) Of the total possession of a controlled substance dispositions (n=l267), 326 (or 25.7%) resulted in prison. In these cases, nearly 60% of prison terms are for one day. Approximately 90% of prison terms for possession are for 30 days, or less. Of all probation terms, approximately half are for one year. Few probation terms are ordered for less than 90 days (less than 4%). Probation terms lasting more than 1 year are also infrequent, resulting in less than 13% of the 294 probation sentences. Table 5.28 Possession of CDS (Statistical Summary for Vancouver, June 2001-May 2003) Total N = 1267 Conditional Prison (days) Probation (days) Fine ($) Sentence (days) # of cases (742) Valid 2 6 326 % of N 2% 25.7% O/O of cases 3.5% 43.9% Mean 128.9 18.9 Median 90 1 Mod€ 1 Percentiles 25 60 1 5.7.3 Possession of a controlled substance by Most Serious Sentence (Vancouver & Provinces, 2002) This section reports on the MSS resulting form a guilty finding for possession of a controlled substance. Or ly guilty findings are included (i.e., guilty of a lesser or included charge counts are not). Figure 22, below, reports the most serious sentence given for possession convictions for selected regions across Canada. Each bar represents 100% of convictions reported for each geographic unit.49 Each portion of a bar represents that disposition's percent share of the MSS total. Vancouver courts use prison sanctions far more frequently than other regions for simple possession. Vancouver uses prison in 55.8% of its 285 possession cases for 2002 (Table 5.29). Table 5.29 Possession Convictions, Selected Regions, 2002 -. .- 'i Ti*" ' '---*^.Pn"pet: -" "2.T -r Total ~os&ssion Prison conditional ' probation Fine Other Convictions sentence sentence Canada 10,202 1,390 119 2,662 5,163 82 1 Alta 1,694 154 ask 626 15 Ont 5,286 947 Maritimes 1,166 4 Vancouver 285* 159 *Note: three guilty findings resulted in no sentence terms. At the provincial level, British Columbia (16.9%) resembles Ontario (17.9%) in terms of imprisonment. 49 Each bar sums to slightly less than 100% due to missing data. I80 Figure 22 Possession Sentences by Type, 2002 I Prism I Conditional Sentence IProbation 1Fine I Other It is clear that Vancouver does not employ fines (6.3%) as the primary response to possession. In contrast, Alberta uses fines as its MSS in about 75% (1280 out of its 1694) possession charges. Saskatchewan (59.5%) and the Maritime provinces (70%) also use fines as the MSS more frequently than the national average (50%). British Columbia as a whole uses fines as the MSS in only about 40% of possession cases. British Columbia as a whole seems to be laying charges for possession less frequently than in years past. Figure 21, below, shows the decline in the charge rate for Cannabis possession in British Columbia over the past 10 years of data (1992-2002). We see a sharp drop in cannabis-related charges for the province from the early through the mid 1990s, with a levelling off since the 1997 collection period, while possession charge rates for heroin and cocaine have remained stable throughout. Given Vancouver's focus on the use of prison, it is important to reflect, once again, on the prevalence of single-day prison terms when we interpret Figure 22. Of the 139 prison terms for which we have valid data, the majority 83 (nearly 60%) are for a single day. Compare this with 27% (64 of 236) for trafficking convictions (Table 5.27). Figure 23 Possession Offence Rates, British Columbia Selected Possession Incident Rates 150 r Herion, possession v -T [v13941208] inn A Cocaine, possession British Columbia Source: ACCS Table 252-0014 British Columbia's 2002 cannabis possession charge rate, which has been stable since approximately 1997 (see Figure 17)' is the lowest among the larger population based provinces. Charge rates for Canada and selected provinces are shown in Figure 24. Figure 24 Possession of Cannabis Charge Rates for Selected Provinces Offences: Cannabis, possession Statistics: Rate, adults charged Date: 2002 T % C a 2 0 0 8 Newfoundland and Labrado British Columbia 0 Source: ACCS Table 252-0014 Recalling that total drugs charge rate for British Columbia is inline with the Canadian trend (Figure 15), it is clear that possession of cannabis is not pursued as frequently as other categories drugs offences. 5.7.4 Production of a controlled substance (Jun 01- Jun 03) For Vancouver, 560 sentences arose from the production of controlled substances charges, with the majority of guilty terms resulting in conditional sentences (n=l II, 19.6%). Terms range from 60 to 540 days (1.5 years), with the most frequently occurring term being 180 days (n=42, 37.8%). If prison is given, the minimum term is 90 days, while the maximum for the study period is 1.5 years. Production charges resulted in a total of 17 prison terms, nearly half of which (8) are for 90 days. The two largest prison terms for production were for one year and 1.5 years respectively. The probation category found one year terms to be most common (n=16, or 43.2% of all probation terms). Approximately 20% of probation terms were ordered for more than a year, with the largest being just under 2.5 years. The number of cases pursued under production of a CDS is low when compare3 to the other drug-related categories, and therefore, the statistics related to Table 10 should be read with caution. Due to the low incidence rate, we do not examiie MSS outcomes for production offences. Table 5.30 Production of CDS (Statistical Summary) 5 . . 3 (d # of cases (204), Valid 111 17 37 20 19 % of N 19.6% 3% 6.6% 3.6% 3.4% % of cases 54.4% 8.3% 18.1% 9.8% 9.3% . .-.. . I%%%:rwa 44" --r*l- Mean 225 162.4 2485.0 P*t%*AZ946.gm- Median 180 120 365 2500 2000 65- Ff'F*- Mode -300g 1000- Percentiles 1500 1000 2 - 365 ,- -" -2500- m=--?p- - 2000" 5.7.5 Trafficking in a controlled substance (Jun 01- Jun 03) Of the 1576 trafficking in a controlled substance charges in Vancouver, the most frequent sentence is prison (n=490, 31 .I%). As seen previously, prison terms of a single day are the most frequen.:, at 25.1% (n=123), while more than half of all prison terms are for 30 days or less. Probation terms, for the most part, "start" at 180 days (only 9 cases, or 3%, are for less than six months). Approximately 20% of probation terms are stretched beyond one year in length. Six cases shared the maximum probation term of 3 years. Conditional sentence orders begin at 90 days and climbs quickly to 180 and then to 270 days. Approximately 65% of conditional terms are for 180 days or less. Table 5.31 Trafficking in CDS (Statistical Summary) .I -- -.--- - 1 -- - . I A". .. - - . . ------.- --.-- "? " - . - . %ond$onal Fine ($) Sentence (d # of cases (1 107) Valid 291 490 299 27 % of N 18.4% 31.1% 19% 1.7% % of cases 26.3% + 44.3% 27% 2.4% , . ------Mean L Ir 176.1~ 1322.1 Median 1 365 500 'Mode 365 500 Percentiles 2 5 90 I 360 200 sw ------' ,~""X.sl*XC r.-- - --i180. "*-.".*,-*- ----e ,. -- '* 50 30 365- 500 75 270 90 365 800 5.7.6 Trafficking in a controlled substance by Most Serious Sentence (Vancouver & Provinces, 2002) British Columbia's trafficking sentence breakdown, along with those for selected provinces, is shown in Figure 25 and Figure 26. Again, Vancouver uses prison more frequently for trafficking offences than do other geographic units, including British Columbia. Figure 25 Trafficking Sentences by Type, 2002 CAN 1 Marit I ~'~rison Ont IConditional Sentence Sask , IProbation Alta IFine IOther BC Vanc Generally, other provinces in Canada and other jurisdictions use conditional sentences with more regularity than does Vancouver. Probation use is approximately even across regions. Vancouver also appears, once again, to under use fines as the most serious sentence when sentencing for trafficking. Although Figure 26 shows British Columbia's cannabis trafficking charge rate (44 per 100,000 adults) as being the highest among the provinces, it is only marginally ahead of Saskatchewan (42.7). Ontario shares the Canadian average charge rate at approximately 37.7 per 100,000 adults. Figure 26 Charge Rates for Trafficking Cannabis, Selected Provinces Offences: Cannabis, trafficking Statistics: Rate, adults charged D_a te : 2002 British Columbia Saskatchewan c> New Brunswick a e 0) s0 Newfoundland and Labrado Prince Edward Island Source: ACCS Table 252-0014 5.7.7 Selected charge rates This section outlines the charge rates for selected provinces. All rates are based on the total adult population (18 years of age and older). Adult rates are somewhat "diluted" by the fact that the elderly (65 years of age and older) are still included, and offending rates for this demographic are very low in all areas. For simplification, only 2002 data are reported. Due to reporting differences, Quebec is excluded from all comparisons. Nunavut, the Northwest Territories, and Yukon are also dropped from comparisons due to their low base populations and reporting differences. Lastly, various of the Maritime provinces are excluded from some tables where they did not report data, or the values were very low. Provincially, British Columbia trails Saskatchewan and Alberta in rates of charge for property crimes (Figure 27) and violent crimes (Figure 28). Per 100,000 adults, British Columbia charges approximately 658 persons for property offences. Figure 27 Charge Rates for Property Crime, Selected Provinces Offences: Total, property crimes Statistics: Rate, adults charged D: D: te : 2002 Newfoundland and Labrad Prince Edward lsla New Brunswick 0 1000 Source: ACCS Table 252-0014 Figure 28 Charge Rates for Violent Crime, Selected Provinces Offences: Tota I, crimes of violence Statistics: Rate,adultscharged D~te: 2002 Manitoba Saskatchewan Alberta British Columbia e m Nova Scotia 0 Ontario ' Newfoundla nd and Labrad New Brunswi Prince Edward Island Source: ACCS Table 252-0014 Charge rates for violent crime show British Columbia (534.2) as trailing Manitoba (1044.9) and Saskatchewan (925.85), but similar to Alberta (543.7). Table 5.32 SelectedCharge Ratesby Province, per1OOK Adults, 2002 .-" --. ------.-- - - -,------m--"F-- -v- Date:2002 ! Statistics: Rate,adults charged Canada Nfld/Lat: PEI NS NB Ont Man Sask AB BC Total, allin cidents 21 90.88 1576.45i ' 1666:03- 1942.08- ' 1762:63- -5b74.fi7-342337- 282834- -31 fi:24" -21 9841 Total,Criminal Code,exclude traffic 1632.37 1228.32 1125.29 1495.74 11 94.22 1492.75 2865 3694.12 2333.38 1670.59 - - Total, crimesof violence 498.1 1 390.43- 350.55 --49108- - 356.05- 458.81- T044.87 *- 92585- --543.76*F 534.21- Total,property crimes 501 -65 433.44 428.86 -. 471 -54 392.48 435.11 548.33 923.99 780.63 657.73 Total, breaking and entering 81 -38 -101-23 " 121.2 78.16--"' 68.49 -- 57.4- --118.38 '- 216.86-F"l~9.93'w 90.24- Total, theft,motor vehicles 33.47 17.82 25.17 26.14.---"" 25.68 21.28 - .- 52.25 83.88 58.83 39.63 Total, havestolen goods 68.21 ' 15.68 15.85 14.15 31.22 80.83 47.98. ' 122.37q-'~14.35"89.26- Total,drugs 198.25 96.72 114.67 138.27 169.55 218.38 160.7 230.4 . 193.9 226.22 "- -. F--" -" -- Total, heroin 2.32 0.24 0 0 0-"--" I :46- "- 0.35 " - 0.27"--"' 0.26-- 10.12- Heroin,possession 0.83 0 0 0 0 01.71 0.12 0.27 0.04 3.4 - " , - - ..---- - ..-.---?".. ------o-, .--- o;21T .-- Heroin,trafficking 1.44 0 0 0 0 01.67 0.23 6.63- Heroin,import and/orprodn 0.05 0.24 0 0 0 0.09 0 0 0 0.09 - ?.------" - " -- - --?...... ------Total,cocaine 41.02 2.61 9.32 14.96 16.79 42.6 -75:95 29.07 56.83' '- ' 67.6- Cocaine,possession 16.51 0.24 1.86 3.64 4.7 21.31 9.48 6.37 19.91, 21.23 , - " --.- " - .w .- Cocaine,trafficking 23.83 2.38 7.46 11-32- 12.09 19:97 - '-26.36"-^ 22.7- 36.88 46.07- Cocaine, import and/orprodn 0.68 0 0 0 0 1.38 0.12 0 0.04 0.31 Total, cannabis 138.4 88.64 94.16 115.36 134.3 ' 157.72 112.37 173.07 "- 114.78 132.63 Cannabis, possession 86.92 52.99 70.86 74.79 77.89 113.6 67.28 122.1 71.55 49.48 - - Cannabis, trafficking '2 16.77 31.37 16.78 25.74 36.93 36.74 35.72 42.74 37.78 43.99 Cannabis,imporiation 1.38 0.71 0 0 1.68 2.89 1.5 0.4 0.09 0.4 . ------, - -- , -. - -. - - Cannabis,production 1 .8 7.86 783"- ' "6 38.77- 6 12.02 28 4 15.86 , - ". . " -. - 0 0- '-0 0 0 Total, restricteddrugs 0 0 0 0 0 0 0 0 0 0 Source: Stat~sticsCanada (table 252-0014,last updatedon February,23, 2004) 2 03 03 6 LOOKING FOR TIGERS IN THE TREES 6.1 Overview of research objectives The primary purpose of this final chapter is to provide a discussion of the empirical data as presented in Chapter 5 and to tie in the earlier discussion regarding how empirical "fact finding" can be merged successfully with the more theoretical world of jurisprudence. It is not always possible, or even, perhaps, advisable, to keep oneself distant from one's empirical findings. Part of this tension between the theoretically "value neutral" collector of empirical facts, and the interested and subjective researcher on the other is what compels this author to acknowledge at the outset, that he is something of both camps. Such an admission is likely to prompt disagreement from both sides of this epistemological divide. On the one hand, the positivists suggest that the researcher was not disciplined enough to avoid subjective impulses. On the other, the natural law and critical legal theorists will want a more committed engagement of what the author believes is operative in the wider context of sentencing, social justice, and systematic disadvantage in Canada. By way of response to these anticipated criticisms, the author suggests that there is value in both perspectives, but not in embracing one to the exclusion of the other. The data miner and the theoretician must both have their say. This is the reality of research in the social world. There are real "facts", but these are knowable only so far-they cannot be understood completely without also knowing something of their situated meanings ascribed to them by the people involved in their viewing. Just as the objective (empirical) world can be understood only so far, the same is true for the subjective. Unsurprisingly, a pragmatic approach takes something from each of these views so that one can impose some kind of order in the world around us. Legal realism, like pragmatism in philosophy, is somewhat undervalued in academic circles because of its unwillingness to take an extreme view. Nevertheless, it is important to understand something of what is actually taking place in our courts before making decisions about correcting its practices along this or that dimension. Using a legal realist approach, this study examines adult criminal court sentencing patterns for eight separate jurisdictions in the province of British Columbia. Each jurisdiction was purposively selected to facilitate direct comparisons with the central municipality, Vancouver. As Western Canada's largest urban centre, Vancouver's Provincial and Supreme courts experience a broad range of charges. If the types of charges before the court have any meaningful impact on overall sentencing patterns, then comparisons will need to be made with other jurisdictions to determine the extent of variation. If one jurisdiction has a steady flow of simple assault charges (which can be disposed of with relatively short sanction quanta), variation will almost certainly exist for this jurisdiction and the next that sees disproportionately more serious assaults. The eight jurisdictions form four key geographic regions for the province: 1. Lower Mainland (Vancouver and Abbotsford), 2. Vancouver Island (Victoria and Campbell River), 3. Interior (Kelowna and Salmon Arm) 4. North (Prince Rupert and Prince George) Each region was examined to determine if various charge categories show dramatically different total sentence combinations or if there is noticeable variation in the Most Serious Sanction (MSS) imposed. Examining detailed case files in the legal sense is valuable: such a strategy provides answers about specific disparities, but can do little to reliably describe the total picture of sentencing for municipalities as a whole. Nevertheless micro-level research can expose the roles of various facts of the case, such as which offences are brought forward to charge, which are dropped or are combined into existing charges. While micro-level analysis is a valuable part of the sentencing picture, it is not the entire answer. This research takes a different data collection methodology to provide a different look at sentencing patterns. The unit of analysis in this research is the administrative court record. These data are extracted from the same database (JUSTIN) that the provincial court authority, the Court Services Branch, uses to provide to the national Adult Criminal Court Survey (ACCS). While the original data file includes records for all court appearances, this research reports on only those appearances that received a final disposition. Final dispositions include a formal decision to either stop proceedings, such as stays of proceedings, findings of guilt, acquittals and discharges. Procedural appearances, which include those to determine if an accused is fit to stand trial, or interim release hearings, are only included if these "in process" hearings are interrupted by a final disposition. In total, nearly 90,000 court records, spanning a two-year period (June 1, 2001 - May 31, 2003) are examined. The primary focus of this dissertation is to understand, at the aggregate level, sentencing patterns for selected jurisdictions in the province of British Columbia. At the time of writing, no academic study has made use of the relatively new JUSTIN database of the Court Services Branch. As this study marks the first public use of the JUSTIN data, the author hopes that more researchers will be made aware of not only its availability, but it rich depth. Like most preliminary forays, this study is centred on establishing a solid foundation for future work. A vital part of this process is to prepare for the safe passage of those that follow. To this end, the author hopes to identify at least some of the "tigers" in the "trees" of criminal court data.50 As the data are administrative court records, they must reflect the reality of court appearance as they are scheduled. An accused can enter a plea at anytime, even if the formal reason for his or her attending the court is not to make a final determination. If an accused enters a plea of guilty during an interim release hearing, then the case is resolved to a final disposition. Put another way, if one were to only examine "trial hearings," a range of completed dispositions is likely to be overlooked. While it may seem needlessly specific to consider the technical details of how an in-process appearance is to be 50 See the opening quotation in the previous chapter, taken from p. 9 of (2004, p. 9) 193 distinguished from those appearances that normally expect a final disposition, it does illustrate the importance of using the data one has appropriately. Administrative records are full of detail, but that detail cannot be marshalled to answer any question one may wish to pose. It cannot, for example, answer normative questions regarding what one ought to do about sentencing disparity. Administrative records can help researchers to understand what is being done in the courts. The author follows Llewellyn's key admonition to observe the actions of the courts rather than their rules (1962: 21-22). The first step in accomplishing this task is to reflect on similar research using similar methodologies and data. There is an extensive literature regarding the process of sentencing adults in Canada's criminal court, beginning with the classic treatments (Hogarth, 1971; Jaffary, 1963; Ruby, 1980), and a range of more focused scholarship on particular aspects of sentencing such as fines (Marinos, 1997; Verdun-Jones & Mitchell-Banks, 1988), pre-sentence reports (Waters, 1978), pre-sentence custody (Manson, 2005), and conditional sentencing (Department of Justice, 2000; Gemmell, 1999; Justice, 2000; North, 2000, 2002; Roberts & Laprairie, 2000). However, few empirically-based studies examine the "lay of the land," in the sense that the distributions of charges and sanctions play a central role in the analysis. There are exceptions, as evidenced by the systematic and detailed studies by a relatively small group of academics (Roberts, 1999a; Roberts & Birkenmayer, 1997) and work produced by the Centre for Criminal Justice Statistics (Birkenmayer & Besserer, 1997; Canadian Centre for Justice Statistics, 2001 b; Turner, 1993). At the time, Robert's (1999) study involved the most comprehensive look at sentencing data using ACCS data. The following discussion reflects what was found for the present research and key findings from these works. 6.2 Discussion of key findings To digest the findings of this research in one sitting, this section is divided into a series of issues. The first issue involves the reputed leniency in Vancouver courts for almost any crime, but for drug-related charges in particular. This assumption is typical of anecdotal discussions with criminal justice professionals. In order to facilitate navigation through the original data, Tables and Figures are cross-referenced by title and page number within this document. Stated plainly, Vancouver courts appear to sentence drug-related offences differently than other jurisdictions. Although one can only speculate as to the specific reasons for this, as the court records do not hold details about the "case" per se, some of the more likely issues at play are set out, below. Vancouver uses prison more frequently for trafficking in a controlled substance than we find for other provinces, including British Columbia as a whole (Figure 22, p. 180). Generally, officials in the rest of Canada use conditional sentences with more regularity than Vancouver. Probation use is approximately even across regions. Vancouver also appears to under use fines as the most serious sentence when sentencing for trafficking. However, around 30% of prison sentences are for a single day. Vancouver uses prison far more frequently for cases involving simple drug possession. Again, almost 60% of these prison sentences are for one day (Figure 24, p. 182). Vancouver does not employ fines as the primary response to simple possession as much as other provinces. The only drug- related offence that Vancouver does sentence with lengthier prison and other sanction terms is production of a controlled substance (Table 5.7, p. 127). Charge mixes for Vancouver courts show that this jurisdiction sees more of this type of crime than any other jurisdiction in the study Figure 7, p. 151). It is likely that Vancouver police and courts are confronted with drug-related crime arising from what is termed the "Downtown Eastside." Per capita, this area of Vancouver is one of the poorest areas in Canada, and has had a long history of being "the place" to find and consume various controlled drugs (Bryce, 1999; The Economist, November 20, 2004). The area has a safe injection site which is a facility that enables users of controlled substances to "use" in a medically supervised location free of police prosecution, and although researchers find that this facility is improving the liveability of the downtown area (Wood et at., 2004), it may still function as an attractor node5' for other drug-related offences, especially those relating to trafficking. If regional demographics can make a difference for a large urban centre such as Vancouver, one must expect that other jurisdictions are similarly disposed to local conditions. Irrespective of the rate of imprisonment for Vancouver accused, when prison is given, it is for a shorter term than elsewhere. In this study, the median 51 A node is considered an important location, land mark, or social space that is central to one or more individuals. In many larger urban centres it is common for illicit drug dealing and or consumption to take place in specific locales. The function of the built environment is a central them in environmental criminology. For the classical treatment of space and crime, see (P. L. Brantingham & Brantingham, 1993; Eck & Weisburd, 1995). sentence length is the most common measure, but this trend holds for other quartile benchmarks as well. Vancouver uses one-day jail terms more frequently than other jurisdictions. Prison terms for a single day are, typically, indicative of time already served in remand while awaiting trial. However, when such terms are in fact intended by the sentencing court to be a single day, this is often intended to qualify the accused for some form of sanction. One-day terms also appear to be an informal solution to allow the use of fines where offences for which the accused is being sentenced is covered by a minimum term of imprisonment. Some relatively minor offences (cause a disturbance or trespass) have been previously linked to one-day terms (Turner, 1993: 18). Nevertheless, as these sentences are contributing to the ACCS, and most notably in the justice statistics available to researchers and the public, British Columbia's rates of imprisonment may be inflated. To what extent this may be the case is impossible to determine. Vancouver also uses shorter prison sentences (again, as measured by the median value) for theft over $5000 than many other jurisdictions. For the less serious crime of theft under $5000, Vancouver uses prison at about the same length (median) as most other jurisdictions. Simple property theft is interesting from an analytical point of view in that it is a high-volume offence, that most jurisdictions will see a substantial number of cases through to some kind of sanction. If Vancouver is similar in its sentencing on this crime type, perhaps there is something to the suggestion that high-volume crimes are treated more similarly than more "exotic" (or more accurately, less frequent) crimes. Again, 197 one can only hazard a guess about the extent of how much, if at all, unusual cases may be subjected to unequal scrutiny. Once again, case file review will assist in answering this question. While British Columbia charges significantly more drug traffickers than any other province in Canada, the proportion of these charges showing prison terms is not substantively different from the Canadian average. For the four main sanction categories, prison, conditional sentence, probation and fine, British Columbia is relatively close to the other provinces. After one looks at the quanta for these sanctions, one finds the similarity ends. Sentencing for drug possession in British Columbia is more lenient than other provinces in Canada. British Columbia imposes a fine for possession noticeably less than the Prairie and Atlantic provinces, but is in line the Canadian average. British Columbia discharges possession of a controlled substance more than other provinces and the Canadian average. 6.3 Recommendations for future research Quantitatively-oriented studies such as this dissertation research could be enhanced by cross-national studies where there is sufficient comparability of datasets. At an early stage in this research, the author sought to secure comparable data for the city of Toronto. Vancouver is often compared to this city on any number of social, political and economic dimensions, so its "fit" for being a point of comparison is clear. Sheer size would make the relevant court data stable from that aspect, but perhaps more importantly, each has "big city" 198 concerns about crime in general. High concentrations of urban poverty, open illicit drug markets and other population dynamics suggest Toronto and Vancouver to be fruitful research sites. However, ACCS data were not available for the city of Toronto-at least not without a truly prohibitive cost for a custom extract. Fortunately for this research, the Court Services Branch has developed JUSTIN, an information system that performs just this service. Other jurisdictions would also be most valuable, again, pending the availability of comparable data. Winnipeg, with its high concentrations of very poor Aboriginal populations in the downtown core is markedly similar to that found in Vancouver. The prospects for a Winnipeg comparison are slim, however, Manitoba generally does not report to the ACCS. Within the province of British Columbia, however, JUSTIN has essentially complete coverage for all courts. Other sites could be compared. Surrey and Richmond are both large cities that would benefit from an aggregate look at sentencing trends. As these cities are part of the Central Metropolitan Area (or CMA) reporting district for the Canadian Census, these sites were excluded from the current research due to their proximity to Vancouver. The author agrees with Roberts (1999b) that the primary limitation to the ACCS data is that it does not provide criminal history details, or even indicators of having one or more prior charges. Aggregate court records do provide the most comprehensive source of sentencing information, but their present composition prevents even cursory analysis of case-to-case disparity. All that can be said, within the bounds of the data, is that sentence quanta show marked 199 variation by type of charge and the region or jurisdiction of the court. The ACCS data provide a solid foundation, but to really demonstrate empirically, when variation becomes something called "disparity", one must await detailed file reviews. The quantitative orientation of this dissertation is demanded by the nature of the JUSTIN data, and by no means should it be taken as a suggestion that qualitative work is less valuable. Given access to the appropriate data, qualitative methods are likely the strongest for determining case details. As a move toward this deeper understanding, it would also be helpful to integrate large-scale, quantitative studies with a more qualitatively-oriented methodology where a subset of cases might be explored through interviews, surveys and the like with people involved in the case, including officials and accused persons. Sentencing is, as Hogarth (1971) reminds us, a "human process", and what is presented here is to be considered as one stage of many. In continuing the focus on administrative records, one possible next step this research suggests is that a systematic file review of cases involving the specific charges could be highly rewarding. The data presented above finds that charges such as drug trafficking, production of a controlled substance, serious assaults, simple assaults and theft of property under $5,000, show enough variation to warrant a "closer" look. Regional trends suggests that Vancouver Provincial Court - the single busiest court in the study would make an excellent base from which to compare British Columbia's smallest and least "urban" courts: Campbell River, and Prince Rupert. Each of these less urban jurisdictions show higher prison lengths than most other jurisdictions for the offences just mentioned. It is likely an important feature of understanding sentencing disparity-that is "unwarranted" variation in sentence quanta-that local settings and social circumstances play a role in how a court "sees" a given type of offence. A court with multiple trafficking of heroin charges per unit of time may begin to handle these cases somewhat more casually than similar charges at a court where this offence type is relatively rare. Location quotients and their adaptation to indicate the relative mix of charges before each jurisdiction in the study area also suggests that certain jurisdictions (Kelowna, Campbell River and Salmon Arm, for example) experience more Criminal Code driving offences relative to other areas. Vancouver courts sees, relative to other offences charged through to a final disposition in its courts, far fewer Criminal Code driving offences (such as impaired operation of a motor vehicle), despite the fact that it is a primary entertainment destination for the Lower Mainland. One must not forget, however, that the courts can only handle those cases that are brought to their attention by police and the Crown prosecutors. This is a likely explanation for why Vancouver charges more CDS trafficking offences than possession cases than any other jurisdiction in Canada. In discussions with various officers of the court, the author was told repeatedly that simple possession of a controlled substance was rarely, if ever, the original charge. As this study looks at final dispositions, it was not possible to examine the first charge and the final charge. This is another interesting issue for further investigation, and would, benefit most from an examination of the actual case files. As a parting comment, one last point regarding the value of administrative records and Exploratory Data Analysis (EDA) may be made. By taking stock of truly large datasets (at least in social science terms), one can isolate the curious, the unexpected, and then direct subsequent research energy in these areas. Administrative records are limited in substantive details about such things as offender characteristics, prior criminal histories, and so on, but they do provide the most comprehensive view of what the courts do every day. If the aggregate trends show one jurisdiction to be more or less likely to dispose of charges with a particular type of sanction (prison or a fine, for example), this can be explored in more detail. Detailed answers as to what "unwarranted" disparity is, where it is to be found, and why this may be the case will take substantial effort, and one would do well to know where to start looking, and understanding the trends at the aggregate level can support such efforts. APPENDICES Appendix A-Case characteristics standard file layout JURIS* Jurisdiction N LEVEL Level of Court N COURT Court Location AN APPEAR Appearance Type and Result N DCOURT* Date of Court Appearance N LREP Legal Representation AN DELECT Accused or Defence Election AN INFO* Information Number AN CSEQ* Charge Sequence Number AN DOFF Date of Offence AN DlNlT Date of Initiation AN STAT Type of Statute AN SECT Statute Section Code AN SUBS Statute Subsection AN PARA Statute Paragraph AN NATURE Nature of Offence AN PROCED Crown ProceedingICrown Election AN PLEA Type of Plea AN DlSP Type of Disposition AN WARRANT BenchlArrest Warrant Issued AN SENT Type of Sentence AN CONDTYPE Type of Conditional Sentence of N lmprisonment Conditions CONSCUR ConsecutiveIConcurrent Indicator N LCONDIT Length of Conditional Sentence of N lmprisonment OSDETAIL Other Sentence Detail N PROBTYPE Type of Probation N TIMESERV Time Served N LPRISON Length of Prison AN LPROB Length of Probation AN AFlNE Amount of Fine AN AREST Amount of Restitution AN OTHER Other Sentence Type N IDENT* Local AccusedIDefendant Identifier AN SDX AccusedIDefendant Soundex Code AN SEX Sex of Accused AN DBIRTH Date of Birth of Accused AN [Filler] Blank * Key Fields AN=Alphanumeric N= Numeric REFERENCES Arat-Kodc, S., & Comack, E. (1999). Locating law: Race, class and gender connections. Halifax, N .S .: Fernwood Pub. Ashworth, A. (1983). Sentencing and penal policy. London, England: Weidenfeld and Nicolson. Ashworth, A. (2000). Sentencing and criminal justice (3rd ed.). London, England: Buttenvorths. Auchmuty, R. (2003). When equality is not equity: Homosexual inclusion in undue influence law. Feminist Legal Studies, 11(2), 163-190. Babbie, E., Halley, F., & Zaino, J. (2003). Adventures in social research: Data analysis using SPSS(tm) 11.0/11.5 for Windows(r) (5th ed.). Thousand Oaks, CA: Pine Forge Press (Sage Publications). Barnard, K., Tennenhouse, C., & Krasnick, M. (1976). The September study: A look at sentencing and recidivism. In Studies on imprisonment (pp. 11-47). Ottawa: The Law Reform Commission of Canada, Supply and Services. Barry, B. (1975). The liberal theory of justice: A critical examination of the principal doctrines in A theory of justice by John Rawls. Oxford: Clarendon Press. BC Stats. (2004). GVRD population estimates 1992 - 2004. Retrieved July 23, 2005, from http://www.gvrd.bc.ca/publications/file.asp?lD=293 Beattie, J. M. (1977). Attitudes towards crime and punishment in Upper Canada, 1830-1850: A documentary study. Unpublished manuscript, Toronto. Becker, H. S. (1998). Tricks of the trade: How to think about research while you're doing it. Chicago: The University of Chicago Press. Birkenmayer, A. C., & Besserer, S. (1997). Sentencing in adult provincial courts: A study of nine jurisdictions, 1993 and 1994. Ottawa: Statistics Canada: Canadian Centre for Justice Statistics. Bix, B. (2002). Natural law: The modern tradition. In J. Coleman & S. Shapiro (Eds.), The Oxford handbook ofjurisprudence and philosophy of law (pp. 61-1 03). Oxford: University Press. Bix, B. (2004). Jurisprudence: Theory and context (3rd ed .). Durham, North Carolina: Carolina Academic Press. Boyd, N. (1988). The origins of Canadian narcotics legislation: The process of criminalization in historical context. In R. C. Macleod (Ed.), Lawful authority: Readings in the history of criminal justice in Canada (pp. 192- 218). Toronto: Copp Clark Pitman Ltd. Boyd, N. (1991). High society: Legal and illegal drugs in Canada. Toronto: Seal Books, McClelland-Bantam, Inc. Brantingham, P. J., & Brantingham, P. L. (1984). Patterns in crime. New York: Macmillan Publishing Company. Brantingham, P. J., & Brantingham, P. L. (1987). Litigation services: An evaluation study (pp. 109-143): Bureau of Programme Evaluation and Internal Audit, Department of Justice Canada. Brantingham, P. J., & Kress, J. M. (1979). Introduction. In P. J. Brantingham & J. M. Kress (Eds.), Structure, law, and power: Essays in the sociology of law (pp. 5-1 1). Beverly Hills, CA: Sage. Brantingham, P. L. (1985). Sentencing disparity: An analysis of judicial consistency. Journal of Quantitative Criminology, I (3), 281-305. Brantingham, P. L., & Brantingham, P. J. (1993). Nodes, paths and edges: Considerations on the complexity of crime and the physical environment. Journal of Environmental Psychology, 13, 3-28. Brantingham, P. L., & Brantingham, P. J. (1995). Location quotients and crime hot spots in the city. In C. R. Block, M. Dabdouts & S. Fregly (Eds.), Crime analysis through computer mapping (pp. 175-1 97). Washington, DC: Executive Police Research Forum. Brantingham, P. L., & Brantingham, P. J. (1998). Mapping crime for analytic purposes: Location quotients, counts, and rates. In D. Weisburd & T. McEwen (Eds.), Crime mapping and crime prevention (Vol. 8, pp. 263- 288). Monsey, NY: Criminal Justice Press. Brooks, R. L. (2002). Structures of judicial decision-making from legal formalism to critical theory. Durham, North Carolina: Carolina Academic Press. Bryce, P. D. (1999). Vancouver's Downtown Eastside, The Needle Exchange Clinic, and the spatial and temporal evolution of crime. Unpublished Master of Arts Thesis, Simon Fraser University, Burnaby, British Columbia. Burt, C. (1965 (1944)). The young delinquent (4th ed.). London: University of London Press. Canada. (1984). Sentencing. Ottawa: Ministry of Justice and Attorney General. Canadian Centre for Justice Statistics. (2001a). Adult Criminal Court Survey: National data requirements (pp. 64): Unpublished document. Revised, December 200 1 . Canadian Centre for Justice Statistics. (2001b). Sentencing in adult criminal courts, 1999-2000 (No. 85-002-XPE, Vol. 21, no. 10). Statistics Canada: Minister of Industry. Canadian Centre for Justice Statistics. (2003). Adult Criminal Court Survey (ACCS) interface with the British Columbia Ministry of Attorney General Justice Information System: Field interpretation and limitations document (pp. 73): Unpublished document. Revised November 14, 2003. Canadian Centre for Justice Statistics. (2005). Adult criminal court statistics, 2003/04 (No. 85-002-XPE, Vol. 24, no. 12). Statistics Canada: Minister of Industry. Canadian Sentencing Commission. (1987). Sentencing reform: A Canadian approach. Report of the Canadian Sentencing Commission. Ottawa: Ministry of Supply and Services. Cardarelli, A. P., & Hicks, S. C. (1993). Radicalism in law and criminology: A retrospective view of critical legal studies and radical criminology. Journal of Criminal Law & Criminology, 84(3), 502-553. Chakrovorty, S., & Pelfrey, W. V., Jr. (2000). Exploratory data analysis of crime patterns: Preliminary findings from the Bronx. In V. Goldsmith, P. G. McGuire, J. B. Mollenkopf & T. A. Ross (Eds.), Analysing crime patters: Frontiers ofpractice. Thousand Oaks, California: Sage Publications Inc. Chan, W. (1997). Legal equality and domestic homicides. International Journal of the Sociology of Law, 25(3), 203-229. Cole, D., & Manson, A. (1990). Release from imprisonment: The law of sentencing, parole and judicial review. Toronto: Carswell. Comack, E. (1991). 'We will get some good out of this riot yet:' The Canadian state, drug legislation and class conflict. In E. Comack & S. Brickey (Eds.), The social basis of law: Critical readings in the sociology of law (2nd ed., pp. 48-70). Halifax: Garamond Press. Culhane, C. (1991 ). No longer barred from prison: Social justice in Canada. Montreal: Black Rose Books. Department of Justice. (2000). Conditional Sentencing Series Fact Sheet #3: Usage of conditional sentencing across Canada (1996-1999). Ottawa: Department of Justice, Research and Statistics Division. Department of Justice and Solicitor General. (1988). Taking responsibility: Report of the Standing Committee on Justice and Solicitor General on its review of sentencing, conditional release and related aspects of corrections (33rd Parliament, Session 2, Number 65), Daubney Report. Ottawa: Queen's Printer. Doob, A. N. (2000). Transforming the punishment environment: Understanding public views of what should be accomplished at sentencing. Canadian Journal of Criminology, 42(3), 323-340. Douglas, K. S., & Ogloff, J. R. P. (1997). Public opinion of statutory maximum sentences in the Canadian Criminal Code: Comparison of offences against property and offences against people. Canadian Journal of Criminology, 39(4), 433-458. Durkheim, E. (1964). The rules of sociological method (S. A. Solovay & J. H. Mueller, Trans.). New York: The Free Press of Glencoe. Dworkin, R. M. (1977). Is law a system of rules? In R. M. Dworkin (Ed.), The philosophy of law (pp. 38-65). London: Oxford University Press. Dworkin, R. M. (1977). The Philosophy of law. London; New York: Oxford University Press. Eck, J. E., & Weisburd, D. (1995). Crime places in crime theory. In J. E. Eck & D. Weisburd (Eds.), Crime and place, crime prevention studies (Vol. 4, pp. 1- 33). Washington, DC: The Police Executive Research Forum. Editorial. (2004, January 26, 2004). No place like prison for violent offenders. The Province, p. A. 18. Eichner, M. (2001 ). On postmodern feminist legal theory. Harvard Civil Rights- Civil Liberties Law Review, 36(1), 1. Fineman, M. L. A. (1995). Feminist theory and law. Harvard Journal of Law & Public Policy, 18(2), 349-368. Finnis, J. (1980). Natural law and natural rights. Oxford: Clarendon Press. Finnis, J. (2002). Natural law: The classical tradition. In J. Coleman & S. Shapiro (Eds.), The Oxford handbook ofjurisprudence and philosophy of law (pp. 1-60). Oxford: University Press. Flach, P. A., & Kakas, A. C. (2000). Abduction and induction: essays on their relation and integration. Dordrecht; Boston: Kluwer Academic. Friedland, M. L. (1984). A century of criminaljustice: Perspectives on the development of Canadian law. Toronto, ON: Carswell Legal Publications. Friedland, M. L. (1988). Sentencing structure in Canada: Historical perspectives. Ottawa: Department of Justice; Research Reports of the Sentencing Commission. Friedman, L. M. (1999). On stage: Some historical notes about criminal justice. In P. Ewick, R. A. Kagan & A. Sarat (Eds.), Social science, social policy, and the law (pp. 68-1 00). New York: Russell Sage Foundation. Friedman, L. M., & Percival, R. V. (1981). The roots ofjustice: Crime and punishment in Alameda County, California 1870-191 0. Chapel Hill, North Carolina: The University of North Carolina Press. Fuller, L. L. (1969). The morality of law (2nd edition) (2nd. ed.). New Haven: Yale University Press. Gaarder, E., & Belknap, J. (2002). Tenuous borders: Girls transferred to adult court. Criminology, 40(3), 481 -5 17. Gabbidon, S. L., & Greene, H. T. (2005). Race and crime. Thousand Oaks, CA: Sage Publications. Garland, D. (1985). Punishment and welfare: A history of penal strategies. Aldershot, Hants, England: Grower. Geertz, C. (1973). The interpretation of culture. New York: Basic Books. Gemmell, J. (1999). Conditional Sentences. In J. V. Roberts & D. Cole (Eds.), Making Sense of Sentencing. Toronto: University of Toronto Press. Godfrey, B. S., Emsley, C., & Dunstall, G. (Eds.). (2003). Comparative histories of crime. Portland, Oregon: Willan Publishing. Gotanda, N. (1995). Critical legal studies, critical race theory and Asian American studies. Amerasia Journal, 21(112), 127-135. Haney, L. A. (2000). Feminist state theory: Applications to jurisprudence, criminology, and the welfare state. Annual Review of Sociology, 26(1), 64 1-666. Hann, R. (1988). Information systems for sentencing guidelines: Recent experience. In Canadian Sentencing Commission IMinister of Justice and Attorney General (Ed.) (Vol. J23-3115-1988E): Minister of Supply and Services. Hart, H. L. A. (1961 ). The concept of law. Oxford: Clarendon Press. Hart, H. L. A. (1963). Law, liberty, and morality. Stanford, CA: Stanford University Press. Hart, H. L. A. (1964). The morality of the criminal law: Two lectures. Jerusalem: Magnes Press Hebrew University. Hart, H. L. A. (1977). Positivism and the separation of law and morals. In R. M. Dworkin (Ed.), The philosophy of law (pp. 17-37). London: Oxford University Press. Hart, H. L. A., & Honorge, T. (1959). Causation in the law. Oxford: Clarendon Press. Hathaway, A. D. (2004). Cannabis users' informal rules for managing stigma and risk. Deviant Behaviour, 25(6), 559-577. Hay, D. (Ed.). (1975). Albion's fatal tree: Crime and society in eighteenth-century England. London. Himma, K. E. (2002). Inclusive legal positivism. In J. Coleman & S. Shapiro (Eds.), The Oxford handbook of jurisprudence and philosophy of law (pp. 125-165). Oxford: University Press. Hogarth, J. (1971). Sentencing as a human process. Toronto: University of Toronto Press. Minutes of proceedings and evidence of the Legislative Committee on Bill C-90, an Act to amend the Criminal Code (sentencing and other acts in consequence thereof), House of Commons Legislative Committee, Third Session of the 34th Parliament Sess.(1993). Jaffary, S. K. (1963). Sentencing of adults in Canada. Toronto: University of Toronto Press. Langbein, J. H. (1983). Albion's fatal flaws. Past & Present (98), 96-120. Law Reform Commission of Canada. (1974). Studies on sentencing. Ottawa: Law Reform Commission of Canada. Law Reform Commission of Canada. (1976a). Community participation in sentencing. Ottawa: The Law Reform Commission of Canada, Supply and Services. Law Reform Commission of Canada. (1976b). A report on dispositions and sentences in the criminal process: Guidelines. Ottawa: The Law Reform Commission of Canada, Supply and Services. Law Reform Commission of Canada. (1976~).Studies on imprisonment. Ottawa: The Law Reform Commission of Canada, Supply and Services. Litowitz, D. (2000). Gramsci, hegemony, and the Law. Brigham Young University Law Review, 2000(2), 515-552. Llewellyn, K. N. (1962). Jurisprudence: Realism in theory and practice. Chicago: University Press. Maceachren, A. M., Wachowicz, M., Edsall, R., Haug, D., & Masters, R. (1999). Constructing knowledge from multivariate spatiotemporal data: Integrating geographical visualization with knowledge discovery in database methods. lnternational Journal of Geographical Information Science, 13(4), 31 1-334. MacKinnon, C. A. (I989). Toward a feminist theory of the state. Cambridge: Harvard University Press. MacKinnon, C. A. (2005). Women's lives, men's laws. Cambridge, Mass: Belknap Press of Harvard University Press. Malleson, K. (2003). Justifying gender equality on the bench: Why difference won't do. Feminist Legal Studies, 11(1), 1. Mandel, M. (1984). Democracy, class and Canadian sentencing law. Crime and Social Justice (now Social Justice), 2 1-22, 163- 182. Mandel, M. (1985). The rule of law and the legalisation of politics in Canada. lnternational Journal of the Sociology of Law, 13(3), 273-287. Mandel, M. (1994). The Charter of Rights & the legalization of politics in Canada. Toronto: Thompson Educational Publishing. Manson, A. (2005). Pre-sentence custody and the determination of a sentence (Or how to make a mole hill out of a mountain). Criminal Law Quarterly, 49(3), 292-350. Marinos, V. (1997). Equivalency and interchangeability: The unexamined complexities of reforming the fine, Canadian Journal of Criminology (Vol. 39, pp. 27): Canadian Criminal Justice Association. Marmor, A. (2002). Exclusive legal positivism. In J. Coleman & S. Shapiro (Eds.), The Oxford handbook of jurisprudence and philosophy of law (pp. 104- 124). Oxford: University Press. Mayhew, H. (1962 (1862)). London labour and the London poor: A cyclopaedia of the condition and earnings of those that will work, those that cannot work, and those that will not work (Vol. 4). New York: A. M. Kelley. McLeod, 1. (2003). Legal theory (2nd ed.). New York: Macmillan. Milovanovic, D. (2002). Critical criminology at the edge: Postmodern perspectives, integration, and applications. Westport, Connecticut: Praeger. Ministry of the Attorney General. British Columbia: Integrated Justice System (JUSTIN) Moore, M. S. (2003). The plain truth about legal truth. Haward Journal of Law & Public Policy, 26(1), 23. Murray, A. T., McGuffog, I., Western, J. S., & Mullins, P. (2001). Exploratory Spatial Data Analysis Techniques for Examining Urban Crime. Implications for Evaluating Treatment., British Journal of Criminology (Vol. 41): Institute for the Study and Treatment of Delinquency. Nadin-Davis, R. P. (1982). Sentencing in Canada. Ottawa, ON: Carswell Company, Ltd. North, D. M. (2000). An empirical analysis of conditional sentencing in British Columbia. Ottawa: Department of Justice, Research and Statistics Division. North, D. M . (2002). Imprisonment without incarceration: Bill C-4 1, the Supreme Court, and the challenges of conditional sentencing. Unpublished Master of Arts Thesis, Burnaby, Simon Fraser University. Numan, R. (1997). Critical legal parricide, or: What's so bad about warmed-over legal positivism. In S. M. Griffin & R. C. L. Moffat (Eds.), Radical critiques of the law (pp. 21 -43). Lawrence, Kansas: University Press of Kansas. Ortego, J. (1977). Multiple offence sentencing: A proposal for reform. Criminal Law Quarterly, 19(2), 168-195. Palys, T. (2003). ~esearchdecisions: Quantitative and qualitative perspectives (3rd ed.). Toronto: Nelson-Thompson, Canada. Palys, T., & Divorski, S. (1986). Explaining sentencing disparity. Canadian Journal of Criminology, 28, 347-362. Parker, G. (1981). The origins of the Canadian Criminal Code. In D. H. Flaherty (Ed.), Essays in the history of Canadian law (Vol. 1, pp. 249-280). Toronto: University of Toronto Press. Plecas, D., Dandurand, Y., Chin, V., & Segger, T. (2002). Marihuana growing operations in British Columbia: An empirical survey (1997-2000). Retrieved March 10, 2004, from http://www.icclr.law.ubc.ca/Publications/Reports/Summary.PDF Plecas, D., Malm, A., & Kinney, B. (2005). Marihuana growing operations in British Columbia revisited (1997-2003). Abbotsford, BC: University- College of the Fraser Valley. Retrieved July 23, 2005, from http://www.ucfv.ca/pages/Special/ Marihuana-Grow-Ops-in-BC-Study.pdf. Raban, 0. (2003). Modern legal theory and judicial impartiality. Portland, Oregon: Glasshouse Press. Raz, J. (1980). The concept of a legal system: An introduction to the theory of legal system (2nd ed.). New York: Clarendon Press. Reed, P., Bleszynski, T., & Gaucher, B. (1976). Is Justice really blind? A study of legal dispositions and sentences in homicide cases in Canada, 1961-73. Ottawa. Resnik, J. (1996). Asking about gender in courts. Signs: Journal of Women in Culture & Society, 21(4), 952-990. Roberts, J. V. (1988a). Empirical research on sentencing. Ottawa: Dept. of Justice Canada Policy Programs and Research Branch Research and Development Directorate. Roberts, J. V. (1988b). Public opinion and sentencing: The surveys of the Canadian Sentencing Commission. Ottawa: Dept. of Justice Canada Research and Development Directorate Policy Programs and Research Branch. Roberts, J. V. (1990a). Sentencing in Canada: The Context for reform. Canadian Journal of Criminology, 381 -385. Roberts, J. V. (1990 b). Sexual assault legislation in Canada: An evaluation (Sentencing patterns in cases of sexual assault, Report no.3. Ottawa: Minister of Justice and Attorney General. Roberts, J. V. (1995). New data on sentencing trends in Provincial Courts. Criminal Reports, 34(4), 18 1- 196. Roberts, J. V. (1998). The evolution of penal policy in Canada. Social Policy & Administration, 32(4), 420-437. Roberts, J. V. (1999a). Sentencing research in Canada. Canadian Journal of Criminology, 4 1(2), 225-234. Roberts, J. V. (1999b). Sentencing trends and sentencing disparity. In J. V. Roberts & D. Cole (Eds.), Making sense of sentencing. Toronto: University of Toronto Press. Roberts, J. V., & Birkenmayer, A. (1997). Sentencing in Canada: Recent statistical trends. Canadian Journal of Criminology, 39(4), 459-482. Roberts, J. V., & Cole, D. P. (1999). Introduction to sentencing and parole. In J. V. Roberts & D. Cole (Eds.), Making sense of sentencing. Toronto: University of Toronto Press. Roberts, J. V., & Cole, D. P. (Eds.). (1999). Making sense of sentencing. Toronto: University of Toronto Press. Roberts, J. V., & La Prairie, C. (2000). Conditional sentencing in Canada: an overview of research findings. Ottawa: Department of Justice. Research and Statistics Division. Roberts, J. V., Stalans, L. J., Indermaur, D., & Hough, M. (2003). Penalpopulism and public opinion: Lessons from five countries. Cambridge, England: Oxford University Press. Roberts, J. V., & von Hirsch, A. (1999). Legislating the purposes and principles of sentencing. In J. V. Roberts & D. Cole (Eds.), Making sense of sentencing. Toronto: University of Toronto Press. Roosevelt Ill, K. (1999). The myth of choice of law: Rethinking conflicts. Michigan Law Review, 97(8), 2448-2538. Rosenfeld, E. (1988). Process, policy and prejudice: a survey of editorial policies on sentencing-related news. Ottawa: Canadian Sentencing Commission., Canada. Department of Justice. Policy programs and Research Branch. Ross, H. (2001). Law as a social institution. Portland, Oregon: Hart Publishing. Ruby, C. (1980). Sentencing (2nd ed.). Toronto: Butterworths. Russell, K. K. (1994). A critical view from the inside: An application of critical legal studies to criminal law. Journal of Criminal Law & Criminology, 85(1), 222-240. Scanlon, R. L., & Beattie, R. J. G. (1979). Incarceration as a sentencing disposition. Ottawa: Communication Division Ministry of the Solicitor General. Scheppele, K. L. (1994). Legal theory and social theory. Annual Review of Sociology, 20(1), 383-406. Schroeder, J. L. (1996). Some realism about legal surrealism. William & Mary Law Review, 37(2), 455-534. Schwartz, M. D., & Friedrichs, D. 0. (1994). Postmodern thought and criminological discontent: New metaphors for understanding violence. Criminology, 32(2), 221-246. Sebok, A. J. (1998). Legal positivism in American jurisprudence. Cambridge: University Press. Singer, J. W. (1988). Legal realism now. California Law Review, 76(2), 467. Solnit, R. (2004). Hope in the dark: Untold histories, wild possibilities. New York: Nation Books. Solum, L. B. (1997). Indeterminacy and equity. In S. M. Griffin & R. C. L. Moffat (Eds.), Radical critiques of the law (pp. 21 -43). Lawrence, Kansas: University Press of Kansas. Statistics Canada. (2005, June 22, 2005). Concepts and definitions (Adult Criminal Court Survey). Retrieved July 24, 2005, from http:// wwwl2.statcan.ca/english/censusO1 lProductslReferenceldictlgeo02I .htm Supreme Court of Canada. (2005). The Canadian judicial system, from http://www.scc-csc.gc.ca/AboutCourt/system/index~e.asp Sutherland, K. (2005). Marx and MacKinnon: The promise and perils of Marxism for feminist legal theory. Science & Society, 69(1), 1 13-132. Taylor, I., Walton, P., & Young, J. (1973). The new criminology. London: Routledge. The Economist. (November 20,2004). The Americas: The mean streets of Arcadia; Vancouver's homeless. The Economist, 373, 66. Tierney, B. (2004). The idea of natural rights--Origins and persistence. Northwestern University Journal of International Human Rights, 2(0nline Journal at http://www.law.northwestern.edu/journals/jihr/v2/2). Tobias, J. J. (1967). Crime and industrial society in the 19th century. London: B.T. Batsford. Tremblay, P., Cordeau, G., & Ouimet, M. (1994). Underpunishing offenders: Towards a theory of legal tolerance. Canadian Journal of Criminology, 36(4), 407-434. Tukey, J. (1977). Exploratory data analysis: Addison-Wesley. Tuori, K. (2002). Critical legal positivism. Aldershot, England: Ashgate Publishing Limited. Turk, A. T. (1979). Conceptions of the demise of law. In P. J. Brantingham & J. M. Kress (Eds.), Structure, law, and power: Essays in the sociology of law (pp. 12-26). Beverly Hills, CA: Sage. Turner, J. (1993). Sentencing in adult criminal provincial courts: A study of six Canadian jurisdictions, 1991 and 1992 (pp. 1-52). Ottawa: Canadian Centre for Justice Statistics. Vancouver Police Planning Research and Audit Section. (2003). Annual statistical report (2002). Retrieved July 24, 2005, from http://www.city.vancouver.bc.ca/police/Planning/stats. html Verdun-Jones, S. N., & Mitchell-Banks, T. R. (1988). The fine as a sentencing option in Canada. Ottawa: Dept. of Justice Canada Research and Development Directorate Policy Programs and Research Branch. Vining, A., & Dean, C. (1980). Towards Sentencing Uniformity: Integrating the Normative and the Empirical Orientation. In B. A. Grosman (Ed.), New Directions in Sentencing. Toronto: Butterworths. Von Hirsch, A. (1990). The politics of 'just deserts'. Canadian Journal of Criminology, 397-4 13. Von Hirsch, A., Bottoms, A., Burney, E., & Wikstrom, P.-0. (1999). Criminal deterrence and sentence severity: An analysis of recent research. Oxford: Hart. Walton, D. (2005). A study of the role of abductive inference in everyday argumentation and legal evidence. Alabama: University of Alabama Press. Waters, K. (1978). The impact of the presentence report on sentencing. Halifax: Dept. of the Attorney General, Nova Scotia. Weinberg, L. (1997). Holmes' failure. Michigan Law Review, 96(3), 691. Wicke, J. (1992). Postmodern identities and the politics of the (legal) subject. boundary 2, 19(2), 10-33. Wood, E., Kerr, T., Small, W., Li, K., Marsh, D. C., Montaner, J. S. G., et al. (2004). Changes in public order after the opening of a medically supervised safer injecting facility for illicit injection drug users. Canadian Medical Association Journal, 171(7), 731-734.