Sentencing in the Canadian Criminal Justice System
Deciding on an appropriate sentence for a crime is perhaps the most difficult decision judges will make. They know some people want to see long prison terms in the hope that it will punish the offender and deter others. Some believe that the primary focus of sentencing should be rehabilitation.
Unlike other Western countries, such as the United Kingdom and the United States, Canada does not have sentencing guidelines or a sentencing commission. Instead, Canadian judges rely on guidance from the Criminal Code and precedents from case law to reach what they feel is a just sentence.
Judges must weigh many legal considerations that the public may not understand or appreciate, which is why there is often an outcry when a controversial sentence is handed down.
Judicial Discretion Is Important
The Canadian judicial system gives judges a significant amount of freedom – restricted by maximum and sometimes minimum penalties set out in the Criminal Code – to arrive at an appropriate sentence after reaching a guilty verdict.
According to the federal government, a survey shows that seven in 10 Canadians say judges should have some guideline or range of sentences to choose from, along with the option of going outside those ranges if they deem it necessary. About one-quarter say judges should have full discretion in sentencing, and less than five percent say there should be no judicial discretion. That would mean anyone who commits a set offence would receive the same sentence.
The survey also found that 82 percent of those surveyed say that judges should have greater discretion to consider using conditional sentences (allowing the offender to live and work in the community under certain conditions) when the risk to public safety is minimal.
Generally speaking, it is important to note that discretion in sentencing is not just in the hands of the judge. Since most cases do not go to trial, sentences are usually the result of joint submissions made to the judge by the Crown prosecutor and defence counsel. Judges usually accept such submissions, meaning that lawyers for the Crown and defence are key players in exercising discretion regarding sentences.
Sentences Must be Fair and Fit the Crime
Any sentence must be in proportion to the seriousness of the crime. The trial judge must respect the minimum, and maximum sentences set out in the Code and consider sentences appeal courts have handed down in similar cases.
The sentence must also be proportional to the offender’s degree of responsibility. In other words, the judge will order a heavier sentence if the offender played a vital role in the crime compared to an accomplice who joined at the last moment.
The primary purpose of sentencing is to contribute to respect for the law and a just, peaceful, and safe society by imposing sentences that:
- denounce the unlawful conduct and harm to the victim;
- deter others from committing such crimes;
- separate offenders from society when necessary;
- assist in rehabilitating the offender;
- provide reparations for harm done; and
- promote a sense of responsibility for the damage done.
Mandatory Minimum Penalties
Mandatory minimum penalties (MMPs) are one of the most controversial components of sentencing. According to An Overview of Canadian Mandatory Minimum Penalties by the Department of Justice (DOJ), MMPs can be traced to colonial times. For example, six offences in 1892 carried a minimum term of imprisonment. These included engaging in a prize fight (three months), fraud upon the government (one month), stealing post letter bags (three years), stealing post letters (three years), stopping the mail with intent to rob (five years), and corruption in municipal affairs (one month).
In late 2022, Parliament repealed laws that required judges to consider mandatory minimum penalties (MMPs) for 14 offences in the Criminal Code and all six crimes in the Controlled Drugs and Substances Act. According to the government information, this change was made to address “systemic racism in Canada’s criminal justice system,” which now deals with a disproportionate representation of Indigenous peoples, Black Canadians and members of marginalized communities.
Proponents of mandatory minimum sentences say that removing the offender from society for a minimum period holds them accountable and reduces disparities in sentencing. Opponents argue that by limiting judicial discretion, MMPs may prevent judges from giving sentences proportionate to the “gravity of the offence and the degree of responsibility of the offender,” as required by s. 718.1 of the Criminal Code. In addition, the deterrent effect of mandatory minimums and the extra costs they incur within the criminal justice system issues to be considered.
Factors that Can Impact the Sentence
Section 12 of the Canadian Charter of Rights and Freedoms mandates that no Canadian should be “subject to any cruel and unusual treatment or punishment.” The threshold a sentence must meet to be deemed unfair is high, according to the Charter, which explains that an offending sentence must be “grossly disproportionate … and so excessive as to outrage standards of decency.”
When reaching a sentence, the judge will consider whether the accused’s Charter rights were violated. Court will also consider what aggravating, and mitigating factors were presented during the trial.
Common aggravating factors include if the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression. The sentence will also increase if the offender’s intimate partner or a member of the victim or the offender’s family were abused or if a weapon was used.
Mitigating factors that can reduce the severity of a sentence include having no prior criminal record, evidence of good character, an early guilty plea deal and genuine remorse.
The Code lists other facts that can bear on a sentence. Where an offence involves the abuse of an intimate partner, the court must consider the increased vulnerability of female victims, in particular Aboriginal females, when sentencing. Sentences are also increased if a criminal act was done on behalf or at the instruction of a criminal organization.
When asked what should be the top three considerations in sentencing, respondents to a federal
- government survey responded:
- the harm is done to the victim;
- the number of past offences the person has committed; and
- assisting in rehabilitating offenders.
The majority of survey participants say that when deciding on a sentence, judges should be allowed to consider the offender’s mental health or cognitive difficulties, criminal history, poverty or addiction. Three-quarters of respondents also say judges should be allowed to consider personal circumstances, such as if the offender is the sole breadwinner or the primary caregiver to young children.
As noted by the Supreme Court in a 2010 ruling, “No one sentencing objective trumps the others … the sentencing judges’ discretion to craft a sentence which is tailored to the nature of the offence and the circumstances of the offender, while broad, is not without limits.
Disclaimer: The information provided in this blog is for general educational purposes only and is not intended as legal advice. Each case is unique and the laws discussed may not apply to your specific situation. Please consult a qualified lawyer in your area for personalized guidance. The information in this blog is not guaranteed to be accurate or up-to-date and should not be relied upon as a substitute for consultation with a professional.