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In Canada, a judge sentences a person after they have been found guilty of a crime (which is not the same as being convicted of the crime).[1] After a determination is made about the facts being relied on for sentencing, and hearing from both the Crown and the defence about what the appropriate sentence should be, the judge must pick from a number of different sentencing options found in the Criminal Code of Canada, based on a number of factors. Some offences have a minimum sentence, and there may also be a maximum sentence depending on the nature of the offence. The maximum determinate sentence is a life sentence with a 25 year parole ineligibility period, and all life sentences and related parole ineligibility periods are served concurrently (at the same time). There are also options for an indeterminate sentence. There is no death penalty in Canada.

Contents

Sentencing hearing

When a person is found guilty of a crime, a finding has been made that all essential elements of the offence have been met (either by admission through a guilty plea or after the elements have been proven beyond a reasonable doubt in a trial). However, there may be facts that did not have to be determined for the defendant's guilt to be decided (i.e. severity of a victim's injuries, motivation for the crime, etc.). If the guilty verdict was determined by a jury, the judge may have to determine what facts the jury relied on to reach their verdict (since jury deliberations are confidential in Canada[2]).

When the additional facts are in dispute, the party relying on the fact has the burden to prove it. The general standard of proof at a sentencing hearing is a "balance of probabilities". However, if the Crown is relying on an aggravating fact or a prior conviction, the burden of proof is "beyond a reasonable doubt".[1]

There are a number of exceptions to the normal rules of evidence. For example, the judge may permit hearsay evidence. A probation officer can interview the defendant and other people associated with the defendant and file a report. A victim impact statement may be filed with the court (with the option of having it read out by the victim). The defendant is also given an opportunity to personally speak to the court.[1]

Purpose of Sentencing

Section 718 of the Criminal Code sets out the purposes of sentencing:

  • Denunciation
  • Deterrence
  • Separation of offenders
  • Rehabilitation
  • Reparation
  • Promotion of responsibility

Sentencing Principles

There are a number of sentencing principles found in sections 718.1 and 718.2 of the Criminal Code:

  • The sentence must be proportionate to the nature of the offence.
  • The sentence must be reduced or increased depending on the mitigating and aggravating factors (discussed more below).
  • The sentence must be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
  • If the sentence is consecutive, it must not be unduly long or harsh.
  • An offender should not be deprived of their liberty if less restrictive sanctions are appropriate.
  • All available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention for aboriginal offenders.

Aggravating factors

There are a number of aggravating factors a judge is required to consider both at common law and by statute. Common-law factors include whether or not the victim was a vulnerable victim (children, taxi drivers, late-night clerks, etc.).

General statutory aggravating factors are found in section 718.2 of the Criminal Code. They are:

  • Motivation due to bias, prejudice, or hate
  • Domestic violence
  • Abuse of person under 18 years old
  • Breach of trust or authority
  • Offence was committed for the benefit of, at the direction of, or in association with a criminal organization
  • Terrorism offences

There are also specific aggravating factors for organizations found guilty of an offence. In addition, some offences have their own specific aggravating factors. For example, section 255.1 of the Criminal Code makes it an aggravating factor if a person commits a drinking and driving offence when their blood alcohol concentration is more than double the legal limit.

Prior findings of guilt

The court is allowed to take into account prior findings of guilt when determing the appropriate sentence.[1]

For some offences, a prior finding of guilt will create a higher minimum sentence. However, the court cannot rely on the higher minimum sentence unless the Crown notified the defendant prior to defendant's plea.[1] Even if the defendant was not notified, or the Crown chooses not to file the notice with the court, the court can still rely on the prior finding of guilt as an aggravating factor.

Credit for pre-trial custody

If a defendant spent time in custody while awaiting his trial (that is, he was not released on bail), the judge is allowed to take that into account when determining the sentence.[3] There is no specific formula, but judges generally give a "2 for 1" credit for pre-trial custody.[4]

Pre-trial custody can be used to reduce a minimum sentence.[4]

There is no specific sentencing option called "time served". If credit for pre-trial custody is equal to or greater than what the appropriate sentence would be, the trial judge will either suspend the sentence (discuss in more detail below), or sentence the person to one day (which will have the practical effect of just requiring the person to report once in person to the prison).

Pre-trial custody has no effect on a life sentence, and does not affect when a person can apply for parole. It is sometimes referred to as "dead time".

On October 22, 2009, the Parliament of Canada passed a bill that would mostly eliminate a judge's discretion to give credit for pre-trial custody beyond one day for every day served.[5] The bill received Royal Assent on October 23, 2009.[6] It has not been announced when the new legislation will come into force.[7]

The new rules will be as follows:[8]

  1. Generally, the maximum credit a judge may give for pre-trial custody is one day for every day served.
  2. A judge has discretion to increase the credit to 1.5 days for every day of pre-trial custody, provided the person was not detained due to prior convictions or because they were breaching their bail.

Sentencing options

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Absolute and Conditional Discharges

If it is in the best interests of the accused, and not contrary to the public interest, a judge may discharge an accused after a finding of guilt, which is not considered a conviction.[9]. A discharge is only possible if there is no mimimum sentence for the offence, and the offence is not punishable by 14 years of imprisonment or a life sentence.

A discharge may be absolute or conditional. If conditional, the defendant will have to comply with terms under a probation order (described in more detail below).

The effect of a discharge is that it will not considered a criminal record. An absolute discharge is purged after one year. A conditional discharge is purged after three years.[10]

Probation and Suspended Sentences

Probation may be ordered in combination with other sentencing options, or if there is no minimum sentence, on its own as a suspended sentence. Probation cannot be ordered in combination with a term of imprisonment of more than two years, and it cannot be in combination of both a fine and imprisonment.[11]

The maximum length of a probation order is 3 years.

A probation order will require the defendant to comply with a number of conditions. Some of the conditions are mandatory: "keep the peace and be of good behaviour", appear in court when required to do so, and notify the court and probation officer of any change of address or employment. There are also a number of optional terms, which include reporting conditions, non-consumption conditions, non-possession conditions, non-attendance conditions, non-association/communication conditions, and treatment conditions.

Community service can also be ordered as part of a probation officer, with a maximum of 240 hours, over a maximum period of 18 months.

Failure to comply with a probation order is a criminal offence. Committing an offence while bound by a probation order means the offender failed to comply with the order, due to the mandatory condition of "keep the peace and be of good behaviour".

Fines

A fine can be ordered on its own or in addition to probation or imprisonment. It cannot be ordered in combination of both probation and imprisonment.[12]

If the offence is a summary conviction offence (or a hybrid offence where the Crown elects to proceed summarily), the maximum fine is $5,000, unless otherwise stated in the statute.[13]

Failure to pay the fine by the time required in the order can result in the person being found in default. A number of remedies exist, including imprisonment.

In addition, unless waived by the court, the defendant is required to pay a victim fine surcharge in addition to whatever else the judge imposes as sentence.

Restitution

Restitution can be ordered by the court for any property damage, lost or stolen property, or any physical or psychological injuries suffered by a victim.[14]

Conditional Sentence

A conditional sentence is when a court orders the defendant to serve their sentence in the community. It is not allowed when there is a minimum sentence or when it is replacing a term of imprisonment of two years or more.

Imprisonment

Unless otherwise stated by statute, if the offence is a summary conviction offence (or a hybrid offence where the Crown elects to proceed summarily), the maximum sentence of imprisonment is 6 months.[13] Again, unless otherwise stated by statute, if the offence is an indictable offence (or a hybrid offence where the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years.[15]

Generally, a judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence a defendant is serving, or any other sentence arising out of the same transaction; the exception is for a life sentence.

If the total sentence is two years or more, the defendant has to serve their sentence in a federal penitentiary. If the total sentence is for less than two years, the defendant has to serve their sentence in a provincial jail.

A sentencing judge also has the power to delay the time before a defendant is allowed to apply for parole.[16] The maximum parole ineligibility period is half of the sentence or ten years, whichever comes first, unless the defendant is sentenced with a mandatory life sentence.

If a defendant is sentenced to a mandatory life sentence, then the following parole ineligibility periods apply (which includes youths sentenced as an adult):[17]

Offence/circumstances Parole ineligibility period
High treason, first-degree murder (with no additional circumstances) or second degree murder by an offender previously convicted of murder 25 years
Second degree murder (with no additional circumstances) 10–25 years
First degree murder (16 or 17 years old at time of the offence) 10 years
Second degree murder (16 or 17 years old at time of the offence) 7 years
First/second degree murder (14 or 15 years old at time of the offence) 5–7 years

When a jury convicts a person of second-degree murder, they can recommend to the judge a parole ineligibility period, but the judge is not bound by the jury's recommendation.

In certain situations, a person convicted of murder may apply under the faint hope clause to have their parole ineligibility period reduced.

Long term offenders

If a person is convicted for their third or more offence found in section 752 of the Criminal Code, the Crown can apply for the person to be declared a long term offender. The Crown can only make such applications with the personal consent of the Attorney General.

A long term offender is a person where there is a substantial risk the person will re-offend and be a danger to the community, but there is a reasonable possibility of eventually controlling the risk in the community.

When sentenced as a long term offender, the defendant must first serve their prison sentence, and then be placed on a long-term supervision order in the community for a maximum of 10 years.

Dangerous offenders

If a person is convicted for their third or more offence found in section 752 of the Criminal Code, the Crown can apply for the person to be declared a dangerous offender. The Crown can only make such applications with the personal consent of the Attorney General.

A dangerous offender is a person where there is a substantial risk the person will re-offend and be a danger to the community, and there is no reasonable possibility of eventually controlling the risk in the community.

When sentenced as a dangerous offender, the defendant is placed on an indefinite sentence, which is reviewed by the parole board after seven years.

Ancillary orders

A number of additional orders may be made by a judge at the time of sentencing - either optional or mandatory. These include weapon prohibitions,[18] driving prohibitions,[19] forefeiture of crime-related properly,[20][21] DNA orders,[22] and sex offender registry orders.[23]

Youth

Youth are sentenced under a different regime found in the Youth Criminal Justice Act (YCJA). The YCJA also dictates how and when a court can order a youth sentenced under the adult regime.

Constitutional issues

There are a number of constitutional rights guaranteed in the Canadian Charter of Rights and Freedoms that can affect criminal sentencing:

  • Section 7 states "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Since most criminal offences come with the risk of imprisonment, which impacts a person's liberty, the principles of fundamental justice must not be violated.
  • Section 9 protects everyone from arbitrary imprisonment.
  • Section 11(i) states that if the sentencing provisions are changed between the date of the offence and when the defendant is found guilty, the defendant gets the benefit of the lesser punishment.
  • Section 12 states that "everyone has the right not to be subjected to any cruel and unusual treatment or punishment." This can impact both the type of sentence available (either generally or as applied to the specific offence) and the length of the sentence.

See also

References

  1. ^ a b c d e Criminal Code of Canada: Sentencing - Procedure and Evidence
  2. ^ Criminal Code of Canada: Procedure in Jury Trials and General Provisions - Trial
  3. ^ Criminal Code of Canada: Sentencing - Punishment Generally
  4. ^ a b R. v. Wust, 2000 SCC 18
  5. ^ "No more two-for-one sentencing for pre-trial custody after law passes". The Canadian Press. 23 October 2009. http://www.google.com/hostednews/canadianpress/article/ALeqM5jvIViyIxYWdb5zO9lZSzNbRKrF4A. Retrieved 24 October 2009.  
  6. ^ Legislation Restricting Credit for Time Served Receives Royal Assent - Department of Justice (Canada)
  7. ^ Bill C-25 - Legislative Info
  8. ^ Bill C-25: Truth in Sentencing Act
  9. ^ Criminal Code of Canada: Sentencing - Absolute and Conditional Discharges
  10. ^ Criminal Records Act: Custody of Records
  11. ^ Criminal Code of Canada: Sentencing - Probation
  12. ^ Criminal Code of Canada: Sentencing - Fines and Forefeiture
  13. ^ a b Criminal Code of Canada: Summary Convictions - Punishment
  14. ^ Criminal Code of Canada: Sentencing - Restitution
  15. ^ Criminal Code of Canada: Sentencing - Imprisonment
  16. ^ Criminal Code of Canada: Sentencing - Eligibility for Parole
  17. ^ Criminal Code of Canada: Sentencing - Imprisonment for Life
  18. ^ Criminal Code of Canada: Firearms and other Weapons - Prohibition Orders
  19. ^ Criminal Code of Canada: Offences against the Person and Reputation - Motor Vehicles, Vessels and Aircraft
  20. ^ Criminal Code of Canada: Proceeds of Crime - Forefeiture of Proceeds of Crime
  21. ^ Criminal Code of Canada: Special Procedure and Powers - Forefeiture of Offence-related Property
  22. ^ Criminal Code of Canada: Special Procedure and Powers - Forensic DNA Analysis
  23. ^ Criminal Code of Canada: Special Procedure and Powers - Sex Offender Information

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