Wednesday, December 5, 2018
James Foy has posted Proportionality in Sentence Appeals: Towards a Guiding Principle of Appellate Review (23 Canadian Criminal Law Review, 77 (Feb. 2018)) on SSRN. Here is the 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.