The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions

Abstract

This article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks, desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and illustrates the ways that this concept was mainly rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. This multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. In light of this, this article proposes a nuanced framework, similar to the one in England and Wales, rooted in a dynamic understanding of just deserts that allows for the incorporation of relevant consequentialist aims in a principled fashion.

Keywords: Proportionality; Sentencing; Just Deserts; Retribution; Consequentialist; Punishment