The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions

Abstract

This article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks: desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and demonstrates that this concept was primarily rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. It is argued that this multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. The article therefore proposes a nuanced framework, similar to the one in England and Wales, rooted in a dynamic understanding of just deserts that allows for the incorporation of relevant consequentialist aims in a principled fashion. Creative Commons License This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss3/2