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This paper was written Nov 6, 2006 for my UFV Crim 240 (Comparative Criminal Justice Systems) course, instructed by Professor Irwin Cohen.
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INTRODUCTION
This paper is a critical analysis of the sentencing philosophies within the Canadian and Japanese criminal justice system. The cultural background, criminal justice models, and theories behind these criminal justice systems will also be addressed.
CANADA
CULTURAL BACKGROUND
Canada, once a colony of Britain, a neighbor to the United States, is a western socialist-democratic society with a unique twist. Multiculturalism. Multiculturalism reflects a vast diversity of cultural heritages and racial groups. This multicultural diversity is a result of centuries of immigration. Immigrants from Britain, the United States, continental Europe, Asia, and Africa, came to Canada to seek out a new life, a new beginning. Goodrich, J. (1993-1997) About Canada – Multiculturalism in Canada.
CRIMINAL JUSTICE MODELS
Canada applies several criminal justice models to the Canadian criminal justice system. These models are the Justice Model, the Crime Control Model and the Restorative Model. The Justice Model includes: individual rights; minimal interference with freedoms; rights to due process; focus on criminal offences; determinant sentences; right to legal counsel; free will; individual responsibility; appropriate sanctions; ensure justice is done; and, maintain individual rights.
The Crime Control Model includes: protection of society; law and order in society are paramount; state responsibility for maintaining order; crime/status offences; punishment; determinant sentences; right to legal counsel, criminal justice professionals; responsibility; accountability; determinant; protection of society; retribution, deterrence; maintenance of social order.
The Restorative Model includes: harm caused by crime; repair harm done to victims; reduce future harm by crime prevention; peacemaking; reparation of past harms; reconciliation between victims, offenders, and communities; full and equal participation of victims, offenders, and communities in the justice process; mediation; conferencing; circles; community agencies, volunteers, non-profit organizations, criminal justice professionals play a minor role; a violation of people and relationships; for parties to a crime to work out satisfactory solutions; redress for victims recompense for offenders; community reintegration of victims and offenders. Bell, S. J. (2003) Young Offenders and Juvenile Justice, 2nd edition (p. 53).
THEORIES
The theories applied in the Canadian criminal justice system are from the Classical, Neo-Classical, Deterrence, and Conflict schools of thought. The Classical school of thought includes: people are hedonistic in that they seek to gain and avoid harm; people have free will in that they choose whether to commit offences or conform to rules; society represents a form of social contract in that each individual gives up some of his or her hedonistic rights to partake of the greater good provided by social order; punishment is justified as a means of transforming the hedonistic calculation so that performance of duty is more rewarding than following the criminal path; reform of the secular world is worthwhile and appropriate. Deutschmann, L. B. (2002) Deviance and Social Control, 3rd edition (p. 106).
The Neo-Classical school of thought includes: mitigating factors – the judge could take into account whether the attack was perpetrated by a vicious bully, by someone engaged in self-defence, or by a person suffering delusions of persecution; past record – the repeat offender would be punished more severely; differences in free will – Neo-Classical systems put into effect procedures for measuring the degree of responsibility possessed by the offender. Deutschmann (pp. 116-117).
The Deterrence theory holds three principles of punishment: certainty, celerity (speed), and severity. Taken together, these three principles amount to a fourth criterion, exemplarity – that is, the example set for would-be offenders. Deutschmann (p. 118).
There are four typologies of the Deterrence theory: absolute, relative, general, specific, and restrictive. In Absolute Deterrence penalties are so sure, so soon in coming, and so terrible that no crime is committed.
In Relative Deterrence penalties are frequent enough, and serious enough, to encourage other choices. Deutschmann (p. 118) General Deterrence has the demonstration effect: we see others caught and decide that we will not do what they have done. Specific Deterrence has the direct personal effect: the actual personal experience of punishment encourages different choices. Deutschmann (p. 119) In Conflict theory, the emphasis is on law, the application of law, and the administration of justice. Bell (p. 168)
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SENTENCING PHILOSOPHY
There are four basic rationales, or goals for sentencing offenders. They are retribution, or the more modern version referred to as “just deserts,” isolation, deterrence, and rehabilitation. Industrialized countries generally employ more than one of these rationales in order to explain their policies on sentencing. Canada’s approach is an example of this. Its policy objectives for sentencing are explained in Section 718 of the Criminal Code. Terrill, R. J. (2003) World Criminal Justice Systems, a Survey, 5th edition (p. 171).
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives.
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Canada has implemented a multipurpose sanctioning strategy in an attempt to address its multifaceted policy objectives. As such, several sanctions are available to the judicial authorities. They include: imprisonment, intermittent sentence, conditional sentence, suspended sentence, probation, fine, compensation order, restitution order, community service, conditional discharge, and absolute discharge. Terrill (pp. 171-172).
CRITICAL ISSUES
According to Terrill (2003) Canada’s sentencing philosophy, in theory, is suppose to reflect the following:
public safety and protection is the paramount objective of the criminal justice system;
the best long-term protection of the public results from offenders being returned to a law-abiding lifestyle in the community;
fair, equitable and just punishment that is proportional to the harm done and similar to like sentences for like offenses is a legitimate objective of sentencing;
·offenders are sent to prison as punishment, not for punishment;
·incarceration should in most cases be used only where public safety so requires, and we should seek alternatives to incarceration if safe and more effective community sanctions are available;
·the criminal justice system is formed of many parts within and across jurisdictions that must work together as an integrated whole to maximize effectiveness and efficiency (Minister Responsible for Justice, 1997).
However, sentences that are handed down do not reflect Canada’s sentencing philosophies, or the above principles. For example in R. v. Bhalru and R. v. Khosa (2002), Bahadur Singh Bhalru and Sukhvir Singh Khosa were involved in street racing. The result was the death of a pedestrian, Irene Thorpe. Both accused were found guilty, but were only given a two year (less a day) conditional sentence and were allowed to serve their time at home.
Meanwhile, the Criminal Code of Canada (ccc) section (s.) 220(b) states that causing death by criminal negligence carries a life sentence. Another example can be found in the matter of R. v. Senner (2005) where Teresa Senner killed her lover, Norman Wicks for dating other women and not leaving his wife.
The original charge was second degree murder but was later reduced to manslaughter. The judge presiding over the Senner matter sentenced her to a conditional sentence of two years less a day in which Senner would be allowed to serve her time at home.
The facts of this case warranted first degree murder as Senner lured Wicks back to his home and stabbed him to death. Under the manslaughter charge (ccc s. 236(b)) the maximum sentence is life, the judge presiding could have easily given Senner ten years. These sentencing are not isolated. Hanlon. L. (2006, July, 25) Runaway Judges. The Cascade, p. 8.
JAPAN
CULTURAL BACKGROUND
The Japanese legal system has been historically influenced by the Continental Laws, namely, the German Criminal Law and the French Civil Law. However, after World War II, the influence of American Law models has become more dominant in all areas of jurisprudence because of the closer relationship between United States and Japan.
Areas affected have especially been Constitutional Law and Criminal Procedure Law. Prior to 1868, when the Meiji Restoration brought the Western legal systems to Japan, the Japanese legal system had emulated Chinese laws. Western laws were introduced by the government during a period of enthusiasm over the abolition of treaties with Western countries that contained unfair provisions for Japan, such as those denying the right to impose custom duties. Laws that were imported to Japan were gradually reformed to adapt to the Japanese nation.
Thus, the Japanese legal system is a blend of the Continental, Anglo-American and Oriental models. Japanese tradition tries to avoid disputes, particularly among community members. Even as the number of law suits has recently increased, informal resolution without going to court is still preferred.
Stemming from this aversion toward legal formalities, the Japanese informal system is based on mediation and arbitration. In fact, the number of practicing lawyers totals 12,000 over the entire country. This number is comparatively small, for a rate of one per 10,000 population versus one per 450 in the United States. Moriyama, T. World Factbook of Criminal Justice Systems.
CRIMINAL JUSTICE MODEL
The Japanese criminal justice system follows a Crime Control Model aimed at supporting group harmony rather than a Due Process Model aimed at protecting the individual from the state. The Law and Politics Book Review, Volume 1, No. 7 (October, 1991), pp. 112-113.
THEORIES
The theory that applies to the Japanese criminal justice system is the Reintegrative shaming theory. Reintegrative shaming treats the offender with respect, as a good person who has done a bad deed. The theory predicts that societies that degrade, humiliate, and exclude their deviants will have higher rates of deviance. Deutschmann (p. 291).
SENTENCING PHILOSOPHY
The traditional objectives behind sanctioning an offender are retribution, deterrence, isolation, and rehabilitation. Most countries emphasize one or more of these objectives as a rationale for their sentencing philosophy. In that regard, Japan is no different than the others. However, both practitioners within the Japanese justice system and foreign observers of it are in agreement that the Japanese tend to emphasize retribution and rehabilitation. Japanese and foreign commentators are fond of pointing out the homogeneity of Japan’s population and the social cohesiveness of the people, as illustrated by the importance placed on group association. It is within this context that the Japanese sentencing philosophy must be understood.
In determining how to proceed with the disposition of an offender, the paramount concern for the Japanese is how the decision will benefit society. It is an accepted practice for the police to decide whether a minor infraction of the law should be resolved through a formal citation or an apology. It is legally permissible for the procurator to decide if a criminal, irrespective of the nature of the offense, should be prosecuted or have the prosecution suspended. Those offenders who are formally adjudicated may have their sentence modified by the judge exercising powers of discretion. Terrill (pp. 421).
CRITICAL ISSUES
We have seen, in the Japanese criminal justice model that leniency to the offender, happens all to often, which in turn ignores the rights of the victims.
CONCLUSION
In summary, both Canadian and Japanese criminal justice systems ignore the rights of the victims by affording more rights to the offenders. Granted the offender has constitutional and legal rights, however those rights, once the offender is found guilty and convicted of the offense should be vacated. And upon conviction, the rights of the victims should come into play.
REFERENCES
Bell, S. J. (2003) Young Offenders and Juvenile Justice, 2nd edition
Deutschmann, L. B. (2002) Deviance and Social Control, 3rd edition
Terrill, R. J. (2003) World Criminal Justice Systems, a Survey, 5th edition
Hanlon. L. (2006, July, 25) Runaway Judges. The Cascade, p. 8.
Moriyama, T. World Factbook of Criminal Justice Systems. Retrieved November 4, 2006 http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjjap.txt
Goodrich, J. (1993-1997) Multiculturalism in Canada. Retrieved October 31, 2006 from About Canada - Multiculturalism in Canada http://www.mta.ca/faculty/arts/canadian_studies/english/about/multi/index.htm
The Law and Politics Book Review, Volume 1, No. 7 (October, 1991), pp. 112-113