On the issue of proportionality, the difficulty that was written into the Criminal Code in 1996 is the statement about proportionality, which I am obviously completely comfortable with. There is also a statement about the goals of sentencing that goes immediately before it. The difficulty is that accomplishing the various goals of sentencing may well conflict with proportionality. The concern I have is that if we do want proportionality to be the dominant determinant of the severity of the sentence, then we should say that. What we should say perhaps is that those various purposes that are listed there—some of which I don't think can be accomplished at sentencing—should be held within, in a sense, the range that is set by proportionality.
Just as an example—and I'll use this as an example while knowing some of my colleagues sitting as witnesses may disagree with it—we say that one of the goals the judge may choose in determining the sentence should be the rehabilitation of the offender. There's a problem with that. What of the rehabilitation of the offender if the most appropriate rehabilitative sentence is not proportionate to the harm done? The question, then, is how those things become resolved with one another. The Criminal Code of Canada is silent on that issue. It seems to me that the Criminal Code should not be silent on that issue.
I don't want necessarily to go back twenty years to the Canadian Sentencing Commission. What the Canadian Sentencing Commission said was that the dominant principle should be proportionality and that in choosing the actual sanctions, for example, one might choose them to accomplish other kinds of goals. In the end, though, we would look at the sentence and say it's proportionate.
Most of the problem the public has with sentencing, rightly or wrongly—and in many cases wrongly—is that the sentence doesn't look proportionate. That's a completely separate issue from stopping crime through general deterrence. So I would say we should look at ways in which we can ensure that sentences are proportionate to the harm done, so that when a sentence deviates from that, we can easily say it is an inappropriate sentence.