The ground beneath our speech : moral ordering in plea-based criminal justice
University of British Columbia
Master of Laws - LLM
Moral ordering is fundamental to Canada’s criminal law and justice systems, and is most explicitly encountered in post-conviction sentencing proceedings. Beginning with the premise that the law’s order is founded upon both ‘universal’ wrongs and ‘individualized’ responses, this thesis considers some of the problems and opportunities that guilty plea-based resolution processes pose for the moral ordering that criminal courts are convened to undertake. Chapter One conceptualizes sentencing hearings as formal occasions for the expressive discernment and application of moral values. ‘Proportionality’, or the gravity of an offence and the degree of responsibility borne by an offender, is the guiding principle by which courts undertake this gauging. This chapter also considers how an offender’s normative orientation towards their criminal conduct (commonly expressed as remorse) informs sentencing hearings’ function as forums of moral enquiry and ordering. Chapter Two confronts some of the practical difficulties in plea and sentencing proceedings that inhibit and distort the moral ordering that the law aspires towards. The formation and use of guilty pleas, as the dominant means by which criminal charges are formally resolved, are examined for their capacity to open or constrict avenues of moral communication. Other mechanisms, such as the statutory-based tools of offender allocution and victim impact statements, are also assessed as means by which sentencing courts are able to act as forums of informed, dialogic moral ordering. Chapter Two also considers the influence that professional legal actors have in shaping and mediating the experience of lay participants in these forums. Chapters Three and Four present empirical research into how the law’s concern for moral ordering operates in sentencing courts, with particular regard to the engagement of offenders. Eleven justice system professionals, mostly lawyers, were asked for their perspectives and experiences, and observations of four provincial courts in British Columbia were conducted to analyze a court’s “moral speech”. It was observed that while a language of moral ordering could be heard in a majority of sentencing hearings, its expression flourished in contexts that afforded focus on an offender’s full circumstances, thus drawing upon both individual voices and shared values.
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