Aggravating Factors in Sentencing

Course Structure and Reading Assignments

• Term Plan

  • After the current week, there will be four more weeks of class.

  • Reading assignments will be set out for the remainder of the term.

  • The last class is scheduled for Monday, December 1, which will be dedicated to a review session.

• Learning Logs Due

  • Students must hand in their learning logs by the last tutorial in November (second last week).

  • Learning logs will be returned at the exam; students can use them as references during the exam.

  • If exams are taken off-campus, students should photocopy their logs, as originals will not be returned at the exam location.

Exam Preparation and Format

• Exam Structure

  • Students will be required to write one essay and complete various short answer questions.

  • The exam is expected to be manageable regarding time constraints.

• Preparation for the Exam

  • A comprehensive review will be conducted in the last week of classes.

  • Review sessions will ensure that topics and materials covered during the term are clear.

Case Law Discussions

• Provocation and Duress

  • Primary case discussed: R v Ruzic (R uzed I c).

  • Case context: Eastern European woman compelled to smuggle drugs while threats were made against her family.

  • Significance: This is a crucial instance of duress applicable in criminal law.

  • Debate surrounding provocation and duress as usable defenses:

  • Used at sentencing but not always recognized as formal defenses.

  • Statutory considerations referenced from section 17 of the Criminal Code, acknowledging duress as a recognized defense but not as commonly employed as self-defense.

  • Key Criteria for Duress:

  • Duress cannot be applied as a defense for certain offenses, such as:

    • Aggravated sexual assault, hostage-taking, assault, treason, armed robbery, and abduction.

  • Notably, in many cases, the victims are the ones under duress but cannot access this defense, leading to a significant debate on the implications of the absence of this legal defense.

Moral and Legal Debates

• Public Perception of Crime

  • Discussion of the current moral panic around crime rates falling while public fear regarding home invasions escalates.

  • Challenge the idea that increased criminalization of duress could lead to protective measures for vulnerable victims, especially regarding domestic abuse.

• Impact of Cultural Norms

  • Observations on how cultural standards influence criminal law (Euro Canadian perspective vs. Indigenous practices).

  • Issues of representation and how cultural norms can validate or invalidate experiences in criminal court interpretations.

  • Reference cases highlighting the tension between Canadian norms and those from Indigenous communities concerning the types of evidence accepted in courts, especially oral histories.

Sentencing and Mitigation Principles

• Models of Assessment

  • Discussion on when mitigating factors should be applied considering social context.

  • Specific focus on systemic issues and the challenges they pose for justice.

• Complex Cases Discussed

  • R v Borden, R v Hamilton, R v Morris: Examples where social context is pivotal in understanding defendant behavior and resulting sentences.

  • Emphasis placed on historical injustices affecting marginalized communities and how these influence court outcomes.

Aggravating Factors in Sentencing

• Criminal Code References

  • Section 718(2)(a) states that assessments must consider 'the increased vulnerability of female victims' especially when crimes involve intimate partners.

  • Courts expected to incorporate concerns about power imbalances in sentences involving violence, specifically in cases towards women or marginalized groups.

• Types of Aggravating Factors

  • Previous convictions, violent behavior, psychological harm inflicted on victims, use of weapons, and cruelty.

  • Defendants' cooperation and plea bargaining as opportunities for potential mitigation, but complex due to systemic failures in the legal system still pending resolution.

  • Cases discussed demonstrate the necessity of viewing crimes holistically instead of through narrow legal definitions that may obscure ethical, cultural, or systemic injustices.

Final Reflections and Institutional Pressures

• Court Constraints

  • Institutional pressures to prioritize efficiency over fairness in legal proceedings have led to concerns about justice being served adequately.

  • Emphasis on systemic racism as a barrier to achieving fair sentencing and consistency in how offenses are punished.

• Case Studies in Sentencing

  • Investigations into sentencing and conduct must also recognize differing socio-economic backgrounds and hardships affecting offenders, as in the case of R v Morris.

  • Acknowledging the accumulation of systemic issues over time and their role in influencing outcomes for defendants, especially in marginalized communities.

Overall considerations are posed that the law must adapt to changing societal values and norms while ensuring equitable treatment processes that scrutinize and interrogate the evidence placed before courts.