Discretion and The Rule of Law

The most that we are able to do is make the best judgments that are ethics and morals allow us to. The rule of law is universal in the sense that everyone must be equal while being judged. For there to be equality, we appoint citizens of the state to aid in implementing the laws that we have created for ourselves. Law exists as a naturally occurring phenomena that we adhere by every day. However discretion is what has allowed for us to make proper laws that maintain a smooth operation everyday in our society. With new court cases, new considerations must be taken when determining the fate of an individual. It is impossible for us to judge everyone on the exact some grounds. The reason behind this is that everyone circumstances are different. For example, while manslaughter and murder are both regarded as homicide in the Criminal Code of Canada, one carries a heavier social stigma than the other. And that is the necessity of discretion in our legal system. It allows for an individual to face a punishment that is “proportionate to the gravity of the offence and the degree of responsibility to the offender”[6], because only discretion allows for a proper final decision that is seen as ethically proportionate.

[1] Tommy Bouchard-Lebrun v. Her Majesty the Queen, (Quebec: 2009), Online: http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=33687

[2] David N. Schiff, The Modern Law Review (Mississauga: Blackwell Publishing, 1976)

[3] Reference Re: An Objection to A Resolution to Amend the Constitution [1982] 2 R.C.S 793

[4] Ibid: at 800

[5] B.Z.Tamanaha, “An Analytical Map of Social Scientific Approaches to the Concept of Law” JSTOR 15.4 (1995): 501-35. p 503

[6] Criminal Code, RSC 1985, c C-46, s 718.1