Confronting the Experience of Imprisonment in Sentencing: Lessons from the COVID-19 Jurisprudence

Canada Bar Review 2021

19 Pages Posted: 7 Dec 2021

See all articles by Chris Rudnicki

Chris Rudnicki

Rusonik, O’Connor, Robbins, Ross & Angelini, LLP

Date Written: December 15, 2021

Abstract

The prison largely remains a “black box” in the law of sentencing in Canada. Judges are concerned chiefly with the duration, rather than the quality, of a custodial sentence. That changed with the emergence of the global COVID-19 pandemic. This paper contends that the pandemic jurisprudence presents an opportunity to rethink the role that qualitative conditions of imprisonment play in the sentencing analysis. Using debates that have emerged between leading cases in this jurisprudence as a foil, I argue that the emergent doctrine of individualized proportionality authorizes sentencing judges to open the black box in punishment theory and consider the likely experience of a proposed custodial sanction in crafting a fit sentence. I conclude the paper by highlighting one case that demonstrates the promise of this approach.

Suggested Citation

Rudnicki, Chris, Confronting the Experience of Imprisonment in Sentencing: Lessons from the COVID-19 Jurisprudence (December 15, 2021). Canada Bar Review 2021, Available at SSRN: https://ssrn.com/abstract=3978953

Chris Rudnicki (Contact Author)

Rusonik, O’Connor, Robbins, Ross & Angelini, LLP ( email )

36 Lombard St.
Toronto
Canada

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