Tuesday, June 17, 2014
Marie-Eve Sylvestre (University of Ottawa - Civil Law Section) has posted The (Re)Discovery of the Proportionality Principle in Sentencing in Ipeelee: Constitutionalization and the Emergence of Collective Responsibility (SUPREME COURT LAW REVIEW (2013), 63 S.C.L.R. (2d)) on SSRN. Here is the abstract:
This paper discusses two important developments following the Supreme Court's decisions in Ipeelee/Ladue. First, it suggests that the Court's first-time recognition of the proportionality principle in sentencing as a principle of fundamental justice under section 7 of the Charter is likely to have tremendous impact on sentencing theory and practice by offering new constitutional grounds to challenge mandatory minimal sentences and arbitrarily disproportionate sentences. Second, this paper builds on the Court's development around the notion of degree of responsibility to propose a new conception of shared and collective responsibility that include the responsibility of state agents and of the state in the perpetration of the crime and allows sentencing judges to reduce or nullify offender's sentences accordingly.