Proportionality in Sentence Appeals: Towards a Guiding Principle of Appellate Review

23 Canadian Criminal Law Review, 77 (Feb. 2018)

19 Pages Posted: 3 Dec 2018

Date Written: February 2, 2018

Abstract

Appellate courts in Canada do not follow a uniform approach to the review of sentencing decisions. While courts have consistently articulated that appellate review of sentencing decisions is restrained, they have not identified a principled basis for determining the boundaries of this restraint. This article suggests that one principled basis for deciding when to intervene in sentence appeals is the principle of proportionality. The principle of proportionality can guide an appellate court in not only determining when an appellate court should intervene but also how it should intervene. This article argues that by understanding proportionality as encompassing two discrete aspects -- individual and comparative proportionality -- a principled and uniform approach to sentencing review can be achieved.

Keywords: criminal law; criminal sentencing; sentencing appeal; appeals; proportionality; criminal law and philosophy; sentencing and penal policy

JEL Classification: K14; K41; K42

Suggested Citation

Foy, James, Proportionality in Sentence Appeals: Towards a Guiding Principle of Appellate Review (February 2, 2018). 23 Canadian Criminal Law Review, 77 (Feb. 2018), Available at SSRN: https://ssrn.com/abstract=3290702

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