Les sanctions d'une règle de droit législative incompatible avec la Charte canadienne des droits et libertés: le reading in, le reading down, l'interprétation large, l'interprétation atténuée, etc.!

Cet article a précédemment été publié par la Revue du Barreau.

The effects of custodial vs non-custodial sanctions on reoffending : Lessons from a systematic review. 'Los efectos de las penas privativas vs no privativas de libertad en la reincidencia : lecciones de una revisi??n sistem??tica'

Resumen tomado de la publicaci??n

A 'Kimberley protest': diamond mining, export sanctions, and poverty in Awatia, Ghana

The temporary suspension of diamond exports in Ghana in 2006 and 2007 is arguably the most significant move to address mounting criticisms of the Kimberley Process Certification Scheme (KPCS), an international initiative aimed at stemming the flow of rough diamonds used to finance wars. The ban, which took effect in November 2006, was much praised, particularly in civil society circles, where it continues to be seen as a genuine effort to prevent the smuggling of ‘conflict diamonds’. At the time, Ghana was accused of harbouring stones originating from rebel-held territories in neighbouring Côte d’Ivoire. No evidence was found in support of the case that it was a repository for ‘conflict diamonds’, however, and exports resumed early in March 2007. This article examines the context for the accusations of Ghana’s implication in the smuggling of illicit diamonds, and draws on recent fieldwork to explain how the suspension has affected Akwatia, the country’s main diamondiferous area. The actions taken raise important questions about how suspected violators – particularly smaller diamond-producing nations – of the KPCS should be handled, and underscore how global compacts can have a host of negative repercussions at the village level.

Wickedness, Governance and Collective Sanctions: : Can Corruption be Tamed?

Tackling a problem requires mostly, an ability to read it, conceptualize it, represent it, define it, and then applying the necessary mechanisms to solve it. This may sound self-evident except when the problem to be tackled happens to be “complex, “ “ill-structured,” and/or “wicked.” Corruption is one of those kinds of problems. Both in its global and national manifestations it is ill-structured. Where it is structural in nature, endemic and pervasive, it is perhaps even wicked. Qualities of the kind impose modest expectations regarding possibilities of any definitive solution to this insidious phenomenon. If so, it may not suffice to address the problem of corruption using existing categories of law and/or good governance, which overlook the “long-term memory” of the collective and cultural specific dimensions of the subject. Such socio-historical conditions require focusing on the interactive and self-reproducing networks of corruption and attempting to ‘subvert’ that phenomenon’s entire matrix. Concepts such as collective responsibility, collective punishment and sanctions are introduced as relevant categories in the structural, as well as behavioral, subversion of some of the most prevalent aspects of corruption. These concepts may help in the evolving of a new perspective on corruption fighting strategies.

Informal sanctions and conditional cooperation: : A natural experiment on voluntary contributions to a public good.

In a natural experiment, this paper studies the impact of an informal sanctioning mechanism on individuals’ voluntary contribution to a public good. Cross-country skiers’ actual cash contributions in two ski resorts, one with and one without an informal sanctioning system, are used. I find the contributing share to be higher in the informal sanctioning system (79 percent) than in the non-sanctioning system (36 percent). Previous studies in one-shot public good situations have found an increasing conditional contribution (CC) function, i.e. the relationship between expected average contributions of other group members and the individual’s own contribution. In contrast, the present results suggest that the CC-function in the non-sanctioning system is non-increasing at high perceived levels of others’ contribution. This relationship deserves further testing in lab.

Corruption, governance and collective sanctions: : can a wicked problem be tamed?

Tackling a problem requires mostly, an ability to read it, conceptualize it, represent it, define it, and then applying the necessary mechanisms to solve it. This may sound self-evident except when the problem to be tackled happens to be “complex, “ “ill-structured,” and/or “wicked.” Corruption is one of those kinds of problems. Both in its global and national manifestations it is ill-structured. Where it is structural in nature, endemic and pervasive, it is perhaps even wicked. Qualities of the kind impose modest expectations regarding possibilities of any definitive solution to this insidious phenomenon. If so, it may not suffice to address the problem of corruption using existing categories of law and/or good governance, which overlook the “long-term memory” of the collective and cultural specific dimensions of the subject. Such socio-historical conditions require focusing on the interactive and self-reproducing networks of corruption and attempting to ‘subvert’ that phenomenon’s entire matrix. Concepts such as collective responsibility, collective punishment and sanctions are introduced as relevant categories in the structural, as well as behavioral, subversion of some of the most prevalent aspects of corruption. These concepts may help in the evolving of a new perspective on corruption fighting strategies.

New criminal sanctions-inflicting pain through the denial of employment and education

Imprisonments and fines are the standard sanctions employed by most western countries in punishing offenders.  Where neither of these penalties is appropriate, the courts normally have a variety of indeterminate sanctions at their disposal.  However the general effectiveness of these sanctions is questionable.  This paper argues that the criminal justice system has been too slow and unimaginative in developing efficient and effective methods of punishing offenders.  There are ways of inflicting pain on offenders that do not encroach on their liberty or affect their material wealth.  It is suggested that new sentencing options should include the annulment or suspension of an offenders academic qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.

Expanding criminal sanctions for corporate crimes-deprivation of right to work and cancellation of education qualifications

Fines are the standard sanctions employed by most Western countries when a corporation has been convicted of a crime. However, some offences committed by corporations are too serious to be dealt with by way of a fine. There is a need to consider other sanctions that can be invoked in order to deter corporate crime. In this article, it is suggested that the focus should be on criminal sanctions against the natural persons who can potentially commit crimes on behalf of a corporation. New sentencing options against those who can potentially commit crimes on behalf of a corporation should include the annulment or suspension of an offender's academic  qualifications and the making of orders preventing an offender from working or being enrolled in an educational or vocational pursuit.

The capacity of criminal sanctions to shape the behaviour of offenders : specific deterrence doesn’t work, rehabilitation might and the implications for sentencing

There is a considerable gap between the law and knowledge regarding the efficacy of state-imposed sanctions to achieve several key sentencing objectives. Two sentencing objectives which often carry considerable weight in the sentencing calculus are rehabilitation and specific deterrence, despite the fact that neither has been proven to be attainable. This article examines the empirical data on whether specific deterrence and rehabilitation are attainable, and consequently whether they should be retained or abolished as sentencing objectives.