Wrestling with Punishment: The Role of the BC Court of Appeal in the Law of Sentencing

Abstract:     
This article, one in a collection of articles on the history and jurisprudential contributions of the British Columbia Court of Appeal on the occasion of its 100th anniversary, looks at the role and the work of the court in the area of sentencing since the court was first given jurisdiction to hear sentence appeals in 1921. In the three broad periods that we canvass, we draw out the sometimes surprising, often unique, and frequently provocative ways in which the BCCA has, over its history, wrestled with the practice of criminal punishment and, with it, the basic assumptions of our system of criminal justice. We explore the important role that the BCCA has played in articulating a vision of what constitutes a just social response to criminal wrongdoing. The court’s work in this area has been rich, its views on sentencing as mercurial as the practices of punishment. At times the court has served quite directly as an institutional voice for dominant social views of punishment, whether they were of a more sternly retributive form or reflected an era of hope in rehabilitation. Yet, in more recent years, the jurisprudence of the court has also included strong voices reflecting a critical posture towards traditional assumptions in our theories and practices of sentencing. In the current political climate that finds a retributive ethos in the criminal law in ascendancy, this jurisprudence reminds us of the value of this posture - one that asks us to think more deeply, critically, and cautiously about the assumptions that tacitly guide our system of criminal justice.

Keywords: Sentencing, Retribution, British Columbia, Court of Appeal

Accepted Paper Series