In sentencing Garth Drabinsky, Madam Justice Mary Lou Benotto clearly appealed to a widely accepted principle: that the punishment for a crime has purposes that go beyond just the offender. We jail murderers even if we believe they will never in their lives kill another person. We jail perpetrators of corporate fraud to make the point that, as Ms. Benotto said in her sentencing, society does not allow individuals to make their own rules. In other words, the law employs retribution as communication. The courts express the displeasure of society with harmful actions, they communicate our prospective disapproval to any other people who might find the behaviour tempting. So many authorities have laid out these foundations of retributive justice, the expression of our collective outrage at a crime, and the deterrence of others, that they hardly need repeating.
Models of justice other than retribution clearly exist, and have much to recommend them. In his book Dancing with a Ghost, Rupert Ross describes the First Nations understanding of justice approvingly, and notes that we have the justice system we do because "we live in a society of strangers." He clearly finds the First Nations concepts or restorative justice attractive, and quotes a First Nations elder: "we know you have a legal system; we aren't sure it's a justice system." I worked in prison literacy for a long time. I have shaken the hands of child killers and taken flowers to the parents of murdered children. I know some of the limits of the justice system. Retribution does not bring anyone back. It offers catharsis, or "closure", more often in fiction than in fact.
But I know this too: that the justice system makes no sense at all when it makes distinctions not between harms but between instruments. The law ought to discriminate between harm done by negligence and harm done by malice. But the courts ought not to make a distinction between a child killed by negligence with a car bumper and negligence with a Glock. I have read about drunk drivers leaving a trail of death and getting lenient sentences, and of defence lawyers allowed to argue before juries that "any of us" could have driven drunk and killed. From time to time, I read a variation of the bitter comment that if you want to kill someone, you can best do that by getting drunk and running them over.
It does not do to blame this state of affairs on the courts; the courts simply reflect a more general unwillingness to face up to the responsibility that operating a machine as potentially lethal as a car entails. We make excuses for drunk drivers that we would never make for someone who went into a convenience store to get the money and ended up shooting the clerk. Whether we want retributive justice or restorative justice, we should apply it fairly and consistently, and without regard for the instrument by which the criminal committed the offence. We should not have one law for a thief with a pry bar and another for a thief with a calculator and an account book. Similarly, we ought not to have one law for a killer with a gun and another for a killer with a car or truck.