¹ Thomas, Mikail “Juristat: Adult Criminal Court Statistics, 2003/04” (Ottawa: Canadian Centre for Justice Statistics, 2004) at 8 Google Scholar. The proportion of guilty cases sentenced to prison in 2003/04 is 35.4% and has remained relatively stable over the last decade. Other sentence breakdowns include: conditional sentences = 5.2%; probation = 46.0%; fine = 31.7%. See also Kinney, J. B., Court Sentencing Patterns (Burnaby, B.C.: School of Criminology, Simon Fraser University, 2005)Google Scholar, who examines court data from the JUSTIN database from BC's courts (2001 to 2003) to understand whether there is unwarranted sentencing disparity. Among many findings, his thesis reveals that the modal custodial sentence is one day in prison. See online: Simon Fraser University Library <http://ir.lib.sfu.ca/handle/1892/2367>.

² There is inconsistent information about sentences for multiple-charge cases across Canada and therefore only single-charge cases are included within the data set and analysis.

³ Canadian Centre for Justice Statistics, 2003/04, supra note 1, Table 7 at 7.

⁴ Taillon, Jacques, Offences Against the Administration of Justice, 1994/95 to 2003/4 (Ottawa: Canadian Centre for Justice Statistics, 2006) Table 6 at 15 Google Scholar. The table also demonstrates that regional variation exists (i.e., comparing Ontario, Quebec and Newfoundland & Labrador).

⁵ Sentences for offences against the person become comparable to administration of justice offences once minor offences against the person such as common assault, uttering threats and criminal harassment are not included within the category.

⁶ Manson, A., “The Appeal of Conditional Sentences” (1997) 5 Criminal Reports (5^th) 279 Google Scholar; Marinos, V., The Multiple Dimensions of Punishment: ‘Intermediate’ Sanctions and Interchangeability with Imprisonment (doctoral dissertation, Centre of Criminology, University of Toronto, 2000) [unpublished]Google Scholar; Marinos, V., “Thinking About Penal Equivalents” (2005) 7:4 Punishment & Society 441 CrossRefGoogle Scholar.

⁷ Eisenstein, J. & Jacob, H., Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown, 1977)Google Scholar. Eisenstein and co-researchers produced a series of books from their research on the courts in the U.S. See Nardulli, P.F., Eisenstein, J. & Fleming, R. B., The Tenor of Justice (Chicago: University of Illinois Press, 1987)Google Scholar; Eisenstein, J. et al. , The Contours of Justice (Boston: Little Brown, 1988)Google Scholar and Flemming, R. B. et al. , The Craft of Justice (Philadelphia: U of Pennsylvania Press, 1992)CrossRefGoogle Scholar.

⁸ Cole, D., “Introduction: Special Collection on Plea Bargaining” (2005) 50:1–2 Criminal Law Quarterly 1 Google Scholar.

⁹ Ordinal proportionality relates to the principle that similar sentences should be handed down for similar offences. The severity of sentences should increase proportionately to the seriousness of offences. Cardinal proportionality refers to the principle that the entire sentence level should not be too lenient or too severe, regardless of whether there is proportionality between sentences. See von Hirsch, A. & Ashworth, A., Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2005)CrossRefGoogle Scholar.

¹⁰ von Hirsch, A., Doing Justice: The Choice of Punishments (Boston: Hill and Wang, 1976)Google Scholar.

¹¹ Cole, supra note 8 at 1.

¹² Eisenstein & Jacob, supra note 7 at 40.

¹³ Ibid. at 25-6.

¹⁴ Ibid. at 25.

¹⁵ Ibid.

¹⁶ I observed plea negotiations/resolution discussions with Crown attorneys and defence counsel for three days, and one morning was spent in a judicial pre-trial, which included a judge, Crown attorney and defence counsel. Future research will be conducted on plea negotiations and greater time will be spent observing resolution discussions in different courts/locales within Ontario.

¹⁷ Wust v. The Queen; Attorney General for Ontario, Intervener (2000), 143 C.C.C. (3d) 129 at 148.

¹⁸ Ibid. Justice Arbour stated some reasons for the generally accepted two-for-one credit: “The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. “Dead time” is “real” time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-trial custody.

¹⁹ Discussion with Justice David Cole, Ontario Court of Justice.

²⁰ Carriere, Denyse, “Juristat: Adult Correctional Services in Canada, 2001/02” (Ottawa: Canadian Centre for Justice Statistics, 2003) at page 6 Google Scholar. In 2000, Canada's incarceration rate was 118 inmates per 100,000 adult population. This rate is closest to New Zealand as the second highest (at 149 per 100,000). The highest is the United States at 699 per 100,000. These rates can be contrasted to the relatively low rate in Finland at 52 inmates per 100,000 adult population.

²¹ As mentioned above, there is inconsistent information about sentences for multiple-charge cases across Canada and therefore only single-charge cases are included within the data set and analysis.

²² Canadian Centre for Justice Statistics, 2003/4, supra note 1.

²³ Those awaiting trial or those convicted and serving sentences of less than two years are housed within provincial institutions. An offender who is sentenced to two years or more is housed within a federal institution.

²⁴ Roberts, J.V., “Sentencing Trends and Sentencing Disparity”, in Roberts, J.V. & Cole, D.P.., eds., Making Sense of Sentencing (Toronto: University of Toronto Press 1999) 139 Google Scholar.

²⁵ Crutcher, N., “Mandatory Minimum Penalties of Imprisonment: An Historical Analysis” (2001) 44:3 The Criminal Law Quarterly 279 Google Scholar.

²⁶ Manson, A., “The Conditional Sentence: A Canadian Approach to Sentencing Reform, or Doing the Time Warp Again” (2001) 44:3 The Criminal Law Quarterly 375 Google Scholar.

²⁷ For example, Roberts, supra note 24, conducted an analysis of sentencing data and trends. Although he calculated median lengths of sentences of imprisonment across various offences—most notably less than 45 days long—these short lengths were not the focus of his analysis. Instead, he highlighted the issue of disparity in lengths of custody from province to province (e.g., see Table 8.5 at 153).

²⁸ See also Doob, A.N., “Trends in the Use of Custodial Dispositions for Young Offenders” (1992) 34:1 Canadian Journal of Criminology 75 Google Scholar; Marinos, V., “What's ‘Intermediate’ About ‘Intermediate’ Punishments?: The Case of Young Offender Dispositions in Canada” (1998) 40:4 Canadian Journal of Criminology 355 Google Scholar.

²⁹ Doob, A.N., Survey of Youth Court Judges (Ottawa: Department of Justice Canada, 2001)Google Scholar. Doob defined “short” custody within his survey of judges as 60 days or less, ibid. at 4.

³⁰ Supra note 28 at 42.

³¹ Over the five-year period, Ontario made up over half (52.9%) of all single-charge case sentences, followed by Quebec (19.4%) and Alberta (13.0%). The total number of single charge cases decreased from 1995-96 (130,819) to 1999-2000 (99,882). Although the proportion of non-prison sentences decreased slightly over the five-year time period, the proportion of sentences of one to 30 days increased slightly over time—from 15.7% to 16.9%.

³² Non-prison sentences for “administration of justice” offences: 43.4% (26,434) for the five years combined; non-prison sentences for “all other: offences: 76.9% (397,586).

³³ Administration of justice offences include: obstruct justice, give false information, obstruct police, fail to appear, fail to comply, breach of recognizance, and other administration of justice. Assaults include: assault, major assault; Drunk driving offences include: blood level over 80m; operate impaired; other impaired. Serious violence includes: abduction, arson, attempted murder, homicide, dangerous weapon, other weapon, kidnapping, sex assault, sex assault II, sex assault III, other sex crime, and robbery. All possession includes: possession stolen property, possession.

³⁴ For “all other administration of justice” offences see supra note 32 and note 33.

³⁵ The frequency of “other administration of justice offences” was distributed as follows: no prison = 49.2% (25,025); 1-15 days = 28.2% (14,378); 16-30 days = 15.5% (7,905); 31-45 days = 1.7% (846); 46-90 days = 4.3% (2,178); 91-180 days = 1.0% (527); 181-365 days = 0.1% (36); 366-545 days = .0% (9); 546-729 days = .0% (1); 730 days or more = .0% (10).

³⁶ For the category of “all drunk driving” see supra note 33. There were a total of 35,370 single-charge cases over the 5 year period.

³⁷ Ontario, Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussion (Toronto: The Ministry of the Attorney General, 1993)Google Scholar [Martin Committee Report]. The Martin Committee Report was clear that “properly conducted” plea negotiations should be encouraged within the adversarial process: “It is, in the Committee's view, only right that a system which affords counsel so much latitude in the presentation of a criminal prosecution to the Court, and expects counsel to meet such a high standard of integrity and responsibility, would extend to counsel the discretion to resolve issues before trial by mutual agreement,” (ibid. at 283).

³⁸ Ibid. Note Recommendation 46 of the Report: “The Committee is of the opinion that resolution discussions are an essential part of the criminal justice system in Ontario, and, when properly conducted, benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally (at 281). See also Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Supply and Services Canada, 1987)Google Scholar; Ericson, R. & Baranek, P. The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process (Toronto: University of Toronto Press, 1982)Google Scholar.

³⁹ Ontario Criminal Justice Review Committee, Report of the Criminal Justice Review Committee (Ontario: Queen's Printer for Ontario, 1999) at 56–7Google Scholar. These initiatives increase the efficiency of the court process, prevent an Askov crisis, and reduce wasted court resources that could otherwise be used for trials that are most likely to proceed. Askov v. The Queen (1990), 59 C.C.C. (3d) 449 (S.C.C.).

⁴⁰ Martin Committee Report, supra note 37 at 335.

⁴¹ R. v. J.W.I.B. (2003), 176 C.C.C. (3d) 13 (Man.C.A.); R. v. Bernier (2003), 177 C.C.C. (3d) 137 (B.C.C.A.); and R. v. Cerasuolo (1999), O.J. No. 359, Docket No. C35351 (Ont. C.A.). The Ontario Court of Appeal stated in Cerasuolo: “This court has repeatedly held that the trial judge should not reject joint submissions unless the joint submission is contrary to the public interest and the sentence would bring the administration of justice into disrepute: e.g., R. v. Dorsey (1999), 123 O.A.C. 342 at 345. This is a high threshold and is intended to foster confidence in the accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge.…” (at 2-3).

⁴² Recommendation 58 within the Martin Committee Report, supra note 37 at 327, states: “The Committee is of the opinion that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest.”

⁴³ Ontario Ministry of the Attorney General, Crown Policy Manual (Toronto: Ministry of the Attorney General, 2003) at 2–3 Google Scholar.

⁴⁴ Ibid. at 3-4.

⁴⁵ Askov v. The Queen, supra note 39. The Supreme Court of Canada affirmed the right of an accused to be brought to trial in a timely manner and without excessive delay. See also R. v. Morin (1992), 71 C.C.C. (3d) 193 (S.C.C.).

⁴⁶ Report of the Criminal Justice Review Committee, supra note 39 at 56-57.

⁴⁷ The Crown policy manual contains no guidance on this issue. The subject of plea negotiations and the role of administration of justice offences should be studied further.

⁴⁸ During the interviews, judges were asked to talk about the reasons why they might impose short periods of custody for property offences, assault, administration of justice offences, drunk driving, sexual assault I, and moral offences.

⁴⁹ See Manson, A., “Pre-Sentence Custody and the Determination of a Sentence (or How to Make a Mole Hill out of a Mountain)” (2004) 49 Criminal Law Quarterly 292 Google Scholar. He offers a range of available options for addressing credit for pre-trial custody, including addressing quantity of credit, factors bearing on the extent of credit, and how credit relates to the choice of sentencing options. On the latter point, see Roberts, J. V., “Pre-Trial Custody, Terms of Imprisonment and the Conditional Sentence: Crediting “Dead Time” to Effect “Regime Change” in Sentencing” (2005) 9 Canadian Criminal Law Review 191 Google Scholar. Roberts argues that “‘dead time’ should not be used to effect a ‘regime change’ in the sentence imposed, to create eligibility for a sentence of community custody [a conditional sentence of imprisonment]…” (at 194-95).

⁵⁰ A lack of information about pre-trial custody is also an important limitation to highlight since it has an impact on how “short” one's sentencing experiences within custody might be. Although the methods of interviews with judges and observations of Crown attorneys focused exclusively on sentencing, it is clear that pre-trial custody and the decision in Wust, supra note 17, have an impact on the sentencing process and the interpretation of data. Future research should be invested in the relationship between pre-trial and sentencing decisions. See for example, Kellough, G. and Wortley, S., “Remand for Plea: Bail Decisions and Plea Bargaining as Commensurate Decisions” (2002) 42 British Journal of Criminology 186 CrossRefGoogle Scholar.

⁵¹ Doob, A. N. & Marinos, V., “Reconceptualizing Punishment: Understanding the Limitations on the Use of Intermediate Punishments” (1995) 2:2 The University of Chicago Law School Roundtable 413 Google Scholar.

⁵² See Quigley, T., “Has the Role of Judges in Sentencing Changed…or Should it?” (2000) 5 Canadian Criminal Law Review 317 at 333–4Google Scholar. Brodeur and Roberts disagree: Brodeur, J.P. and Roberts, J.V., “Taking Justice Seriously” (2002) 7 Canadian Criminal Law Review 77 Google Scholar, see 87-88. They argue that detailed sentencing guidelines should be established in Canada to accomplish a regime of substitution of intermediate sanctions for short custodial sentences of less than six months.

⁵³ Ibid.

⁵⁴ Kuhn, A., “What Can We Do About Prison Overcrowding?” (1994) 2:4 European Journal on Crime Policy and Research 101 CrossRefGoogle Scholar.

⁵⁵ This term is borrowed from the final report and includes magistrates, district judges, recorders, Crown court judges and senior judges. See Hough, M., Jacobson, J. and Millie, A., The Decision to Imprison: Sentencing and the Prison Population (London: Prison Reform Trust, 2003) at 3 Google Scholar.

⁵⁶ Ibid. at 38.