CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, May 31, 2019

Fehr on Instrumental Rationality and General Deterrence

Colton Fehr (University of Alberta, Faculty of Law) has posted Instrumental Rationality and General Deterrence (Alberta Law Review, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court of Canada concluded in R v Nur that the use of general deterrence in sentencing is not ‘rationally connected’ to its objective of lowering crime levels. Although this conclusion was drawn in the section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, I contend that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Charter. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Court’s ‘individualistic’ approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Court’s insistence upon keeping the principles distinct. It also, however, requires that the Court adjust its position with respect to its method for proving arbitrariness.

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