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Published online by Cambridge University Press: 09 June 2015
Women have largely been ignored in the criminal justice system and in discussions of sentencing in Canada. Existing theories of punishment and the underlying philosophy of sentencing have developed from essentially patriarchal models. As a result, the existing theory and the practice of sentencing in Canada is flawed both by the absence of a feminist theoretical analysis and the absence of a practical appreciation of issues which impact on sentencing female offenders. The framework of accepted sentencing theory and practice has been built upon particular conceptions about women which reinforce the oppression of women. This is evident when one focuses on the reality of the sentence imposed rather than on mere compliance with equal treatment.
I wish to acknowledge the assistance of my colleagues, Shannon O’Byrne and Annalise Acorn, who provided valuable assistance in the development of this work. As well, I wish to thank my Research Assistant, Brenda Waddle, who assisted in the collection of data and information relied upon in the paper.
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47. Ibid. See also Elizabeth Fry, supra, note 34 at 26, and Johnson, supra, note 8 at 34.
48. Johnsonsupra, note 8 at 25.
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55. Federally sentenced women are those sentenced to over two years imprisonment, provincially sentenced women are those sentenced to two years or less.
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57. It appears that the most recent call for closure of P4W has been heeded. On September 26, 1990, the Minister of Justice announced that P4W will be closed.
58. Task Force Report, supra, note 27.
59. See Boyle, supra, note 10 at 119.
60. Ibid.
61. See Task Force Report,Ibidnote 27 at 8. As well, four suicides occurred at P4W during the course of the Task Force inquiry.
62. Boylesupra, note 10 at 119-20.
63. Interestingly, most of the Commission’s comments regarding women are also related to Native offenders. The Commission does appear to recognize that both groups suffer similar social and economic disadvantage which brings them into conflict with the law and that both suffer similar disadvantage in the sentencing process.
64. See Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach, (Ottawa: Minister of Supply and Services Canada, 1987).Google Scholar at 128. (hereinafter Sentencing Commission Report.)
65. Ibid. at 134. Such assessment is relatively meaningless as an indicator of the approach to be adopted in restructuring sentencing theory and practice given that statistical evidence as to achievement of these goals has been inconclusive in most research studies.
66. See Sentencing Commission Report, supra, note 64 at 154.
67. Ibid. at 316-19. The Commission also recommends that guideline prototypes that it has developed be adopted as providing a basis for formulation of a complete set of national numerical sentencing guidelines for Canada.
68. Ibid. at 322.
69. Ibid. at 320.
70. Ibid. at 323.
71. Ibid. at 374-75.
72. Ibid.
73. Ibid. at 376.
74. See Elizabeth Fry,supra. note 34.
75. Supra, note 41.
76. See Task force Report,Supra, note 27 at 123-32.
77. See Johnson,Supra, note 8 at 43. Other authors writing about female offenders have come to similar conclusions. See, for example, Carol La Prairie’s work on aboriginal female offenders: “Selected Criminal Justice and Socio-Demographic Data on Native Women” (1984) 26 Canadian Journal of Criminology 161.
78. See Ashworth,Supranote 54 at 18. Ashworth states that “Punishment is not only permissible but desirable; it is not merely inherent in the idea of law but also socially necessary in order to maintain laws. Society has an interest in crime control—that is, in ensuring that its laws are duly obeyed—and this provides a justification for taking punitive measures against those who have broken the law.” He recognizes, as well, that punishment generally involves the infliction of some deprivation upon a member of society. See also Rupert Cross & Ashworth, A. eds, The English Sentencing System (London: Butterworths 1981)Google Scholar and Thomas, D.A. Principles of Sentencing (London: Heinemann 1979).Google Scholar
79. SeeTong, R. Feminist Thought: A Comprehensive Introduction (Boulder, Colorado: Westview Press Inc.,1989) at 148.Google Scholar Tong states that Clara Thompson, in her rejection of Freudian theories of biological determinism believed that women’s guilt, inferiority, and self-hatred are grounded in culture and the cultural use of biology, not in biology itself.
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83. See Ashworth,Supranote 54 at 320. Ashworth concludes that it is wrong to lengthen an offender’s sentence in an attempt to give the prison authorities sufficient time to rehabilitate him, and a fortiori wrong to lengthen all custodial sentences in the hope of rehabilitating a few.
84. SeeSir James, Stephen Liberty, Equality and Fraternity (London: Cambridge University Press 1967,first pub. 1874)Google Scholarat 161-62.
85. See, for example, von Hirsch, A. & Hanrahan, K.J. The Question of Parole: Retention, Reform, or Abolition? (Cambridge, Mass.: Ballinger Publishing Company 1979)Google Scholarat 32.
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88. See Tong,Supra, note 79 at 109-10 and at 201. Tong discusses Simone de Beauvoir’s analysis of the control of women through myths designed by men. “Honore de Balzac, summarized man’s attitude toward woman when he wrote: ‘Pay no attention to her murmurs, her cries, her pains; nature has made her for our use and for bearing everything: children, sorrows, blows and pains inflicted by man. Do not accuse yourself of hardness. In all the codes of so-called civilized nations, man has written the laws that ranged woman’s destiny under this bloody epigraph: ‘Vae victis Woe to the weak!’ ”
89. MacKinnon, Supra, note 2 at 249.
90. This approach does not advocate that a separate sentencing regime be applied to men and women, rather that sentencing theory and practice address women’s interests and reflect women's concerns.
91. See MacKinnon, Supra, note 2 at 249.
92. Desert is determined and measured on the basis of the gravity of the offence (as defined by men) and the culpability of the offender (as defined by men).
93. SeeSykes, J.B. Consumerist Criminology (London: Heinemann 1984) at 60–61.Google Scholar
94. This approach has been recognized by the Task Force on Federally Sentenced Women in its recent report. Task Force Report, Supra, note 27 at 125-29.
95. Ibid.
96. One might argue, for example, that the Supreme Court of Canada’s recognition of the admissibility of expert evidence in relation to battered wife’s syndrome illustrates a recognition of the need to reassess the manner in which guilt is to be attributed to an act traditionally defined as deserving of punishment.Lavallee v. R, [1990] 1 S.C.R. 852 (S.C.C.).
97. SeeRe Apsat and Manitoba Human Rights Commission (1985) 23 D.L.R. (4th) 277 (Man. Q.B.)Google Scholar
98. See Task Force Report, supra, note 27 at 127.
99. Ibid. at 131.
100. For example, Judges, Police, Crown counsel, Defence counsel, Correctional Services personnel, Probation officers and Parole officials.
101. See Elizabeth Fry, supra, note 34 at 17.
102. See Task Force Report, supra, note 27 at 35- 40.
103. See Boyle, supra, note 10 at 124. The authors discuss the effectiveness of community sanctions, supporting vocational training programmes and community service orders as the fairest and most beneficial to both the female offender and the community.
104. Such an approach has been adopted in Baltimore where a programme has been initiated whereby released offenders convicted of property-related offences are provided economic subsidies and vocational training while seeking legitimate employment. SeeSechrest, L. White, S. & Brown, E.D. “The Prospects for Rehabilitation” in Travis, L.F. Schwartz, M.D. & Clear, T.R. eds, Corrections: An Issues Approach (Cincinnati, Ohio: Anderson Publishing Company 1983).Google Scholar
105. See Task Force Report, supra, note 27 at 36 and 76.
106. Ibid. note 27 at 102-04.
107. Sechrest, supra, note 104.