Time for a Canadian sentencing tribunal?

R. v. Arcand, 2010 ABCA 363, referred to here yesterday, is a very lengthy and careful decision of the Alberta Court of Appeal.

In summary the Court holds that for each category of crime there is a presumptive sentence, to be set by the Court of Appeal, which a trial judge varies from depending on specific circumstances.

In a general way the decision is sensible.

Accused and Crown should know what the starting point is for an offence is so that sentencing is not done in a vacuum.

But here’s the problem – where does the presumptive sentence come from?

The Court of Appeal does not really address that beyond saying, repeatedly, that proportionality (under s. 718.1 of the Criminal Code) governs. Unfortunately, that does not explain why a presumptive sentence is, say, three years instead of two years or five years. At the end of the day the sentence remains arbitrary albeit in the hands of the Court of Appeal.

Now that does not mean there should be no presumptive sentences but a Court, even a Court of Appeal, is not in a position to conduct the studies necessary to determine what, for example, is likely to deter a specific crime (it may be that deterrence doesn’t work at all but that’s another issue). In the United Kingdom they have a commission that sets out, after study, best practices for sentencing. If Canada is to go to a presumptive sentence regime (and that is, despite what the Alberta Court of Appeal suggests, a departure for Canadian law) the regime should be governed by evidence based study and not the anecdotal experience of Court of Appeal.