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. 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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