Public Opinion of Statutory Maximum Sentences in the Canadian 'Criminal Code': Comparison of Offences against Property and Offences against People

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Introduction

In Canadian jurisprudence, an individual's right to be secure from harm is granted great importance. In constitutional law, for example, the Canadian Charter of Rights and Freedoms (1982) holds that "[e]veryone has the right to life, liberty and security of the person..." (s. 7). At the crux of various areas of mental health law is the premise that individuals may be held against their will if they pose a threat to others or themselves (see, for example, the British Columbia Mental Health Act 1979). However, the most important source of criminal law -- the Canadian Criminal Code (Code) -- may be inconsistent with this legal tenet. More specifically, the Code's system of statutory maximum penalties (maxima) appears, prima facie, to contradict the principle which accords human life and safety its important place in the law.

As several commentators have noted (Canadian Sentencing Commission [C.S.C.] 1987; Law Reform Commission of Canada [L.R.C.C.] 1974), maximum penalties, which function as an expression of what society values, should correspond in gravity to the seriousness of offences. Serious violations of society's values should, in principle, be treated more severely than less serious violations. Legal commentators have espoused this view for centuries (Beccaria 1764). Yet, a case can be made, with some exceptions for offences such as homicide, that the Code's maxima are incongruent with legal and social values because, in many cases, the Code contains more severe penalties for offences against property than for those against people. Table 1 presents a subset of offences and maxima from the Code which demonstrates this assertion. For example, the maximum sentences for many offences against persons (i.e., parents who abandon their children or fail to provide them the necessities of life; infanticide; abducting a person under the age of 16; assault) are lower than those for many property offences (i.e., breaking and entering a dwelling house; stopping the mail with intent to search or rob, theft over $1000; public servant refusing to deliver property; theft of cattle; theft of credit cards and other items; robbery(2). Interestingly, as shown in Table 1, white-collar offences, which tend to have been drafted in much earlier times and are the property offences more likely to be committed by persons of high, rather than low, socioeconomic status, tend not to be accompanied by the severe maxima which represent more traditional "street" property crimes.

Table 1 Subset of offences in the Canadian Criminal Code and Food and Drugs Act which constitute a property bias

Offences                                           Maximum sentence
                                                         (yrs.)
I. Offences against people

(*)Failing to provide necessities of life to
    child under 16 [s. 215]                                 2
   Abandoning child [s. 218]                                2
   Infanticide [s. 233/237]                                 5
(*)Assault [s. 266 (a)]                                     5
   Assault with weapon/bodily harm [267 (1) (b)]           10
   Aggravated assault 1268 (2)]                            14
   Torture [269.1 (1)]                                     14
(*)Sexual assault [271 (1) (a)]                            10
   Sexual assault with weapon, threats or bodily
    harm [272]                                             14
   Abduction of person under 16 [280 (1)]                   5

II. Property offences

(*)Theft over $1000 [322 & 334 (a)]                        10
   Public servant failing to deliver
    property [337]                                         14
   Theft of cattle [338 (2)]                               10
(*)Theft of credit card [342 (1) (e)]                      10
(*)Theft of computer service [342.1 (1)]                   10
   Robbery [343/344]                                       Life
   Stopping mail with intent to search or
    rob [345]                                              Life
   Break and enter of dwelling house
    [348 (1) (d)]                                          Life
   Break and enter of non-dwelling [348
    (1) (e)]                                               14
   Possession of break-in instrument
    [351 (1)]                                              10
   Possession of stolen property over
    $1000 [354/355]                                        10
   Theft from mail [356 (1) (b)]                           10
   Forgery [366 (1)/367 (1)]                               14
   Uttering forged document [368 (1)]                      14

III. …