CONFRONTING THE EXPERIENCE OF IMPRISONMENT IN SENTENCING

LESSONS FROM THE COVID-19 JURISPRUDENCE

Abstract

The prison largely remains a “black box” in the law of sentencing in Canada. Judges are concerned chiefly with the duration, rather than the quality, of a custodial sentence. That changed with the emergence of the global COVID-19 pandemic. This paper contends that the pandemic jurisprudence presents an opportunity to rethink the role that qualitative conditions of imprisonment play in the sentencing analysis. Using debates that have emerged between leading cases in this jurisprudence as a foil, I argue that the emergent doctrine of individualized proportionality authorizes sentencing judges to open the black box in punishment theory and consider the likely experience of a proposed custodial sanction in crafting a fit sentence. I conclude the paper by highlighting one case that demonstrates the promise of this approach.