When Sentencing Isn’t an Issue – Letting the Guilty Walk Free

There are many cases where sentencing does not even become a factor, as a conviction was never reached due to a technicality, or in order to protect Charter Rights. These occurrences frustrate the law abiding population, police officers who work hard to construct cases and prosecutors who must maneuver within the delicate lines of the law to prosecute effectively.

Our legal system is built on principles that protect the basic rights of criminals. The reversal of proof, right to legal counsel, right to a fair hearing before an impartial court, and constitutional rights that govern how evidence is obtained are all in place to protect the integrity of our courts.

However, our fervent desire not to wrongfully convict the innocent has lead to the rampant misuse of certain types of defences. Some examples of these are: self defence, automatism (doing something “automatically” and not remembering afterwards how one did it or even that one did it), provocation (a murder is reduced to manslaughter if the killer was provoked beyond self control at the time), battered spouse syndrome, the intoxication defence , and the defence that has perhaps become the most popular – the no intent defence (“Sure, I stabbed her 17 times, but I did not mean to kill her”). Contradictory defences are even allowed to be used simultaneously. For example “I did not kill him, but if I did, it was because I was provoked, but I am not responsible because I was insane at the time.”

The debates surrounding these types of defences are complex. It is not as easy as saying we should do away with them as most of these defences are legitimate in certain cases. However, the rampant use of these defences is the reason why so many murder charges end up as manslaughter convictions, and subsequently inadequate sentencing. Perhaps the easiest solution would be to require a higher level of proof in order to use them.