Sentencing Hearings

Section 718 of the Criminal Code outlines the principles judges must follow when reaching a sentence. They are: to denounce unlawful conduct and the harm done to victims or to the community; to deter the offender and others from committing offences; to separate offenders from society, if necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

If you are found guilty at a trial or elect to plead guilty, you are required to attend a sentencing hearing. Even if you were self-represented at trial, it is advisable to seek assistance from a lawyer at this crucial stage.

The Crown will recommend a sentence they think is appropriate. You also can suggest to the court what you consider to be a fair sentence. If you disagree with the Crown’s proposed sentence, you can explain why to the court. For example, if the prosecutor proposes a period of house arrest that requires that you not leave the city, you could tell the court how that will prevent you from seeing your children, if they are living with the other parent in another city.

Though you have been found guilty of a crime, a sentencing hearing gives you a chance to show the court why you are worthy of leniency. Ask family members, friends or your employer for character reference letters. If alcohol or drugs played a role in your criminal actions, show the court you are addressing that through a treatment or rehabilitation program. Anything about your background or present circumstances that will help the judge understand your efforts to be a contributing member of society can be mentioned.

Before your sentencing hearing, check the Criminal Code to see what the maximum penalty is for the crime you have committed. Some offences have a minimum sentence. Also, do some research and find cases similar to yours. This is referred to as precedent. If someone was given a light sentence in a similar circumstance, you can bring up that case at your hearing and suggest the same punishment should apply.

Self-represented litigants sometimes speak with the Crown attorney before the hearing to see whether they can agree on a proposed sentence. If there is an agreement, both sides can jointly present it to the judge. In most cases, judges will agree to that sentence. Under the public interest test set out by the Supreme Court of Canada in R. v. Anthony-Cook, a judge should only reject a joint submission if accepting it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. This is a high bar, and judges rarely reject a jointly proposed sentence. The judge always has the final say about what is the appropriate sentence.

In every sentencing, the judge will consider mitigating factors and aggravating factorsA fact or circumstance that may support a more severe sentence. before passing judgment. Mitigating factors are any circumstance that indicate a reduced sentence is fair. A guilty plea is one example, as it saves the court time and resources it would otherwise have spent on a trial. Aggravating factors are any circumstances that could lead to an increased sentence because they increase the severity of the offence. This could include the use of a weapon during the crime or offences 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 punishment you receive depends on the circumstance of your offence. Here are some common sentences. Absolute discharge There is no punishment and no probation. You are immediately deemed not to have been convicted, so you will not have a criminal record. The entry on the RCMP database is automatically purged one year after sentencing. Conditional discharge You are required to complete specific actions (community service, alcohol management course, etc.) during a probation period set by the judge (up to three years). Once you have met all conditions, you will not have a criminal record. The entry on the RCMP database is automatically purged three years after sentencing. Suspended sentence and probation The sentence is postponed until some future time to give you time to complete all the conditions of the sentence. You still will have a criminal record. Restitution order You must repay any money taken or pay for the cost of repairing any property damage or for any physical or psychological injuries suffered by a victim. Fines A monetary penalty can be given as a stand-alone punishment or in conjunction with another type of sentence, and you will have a criminal record. Imprisonment You may be sentenced to spend a specific amount of time behind bars. If you have already served some time in jail after being charged, you will receive credit for that time (usually 1½ times the actual time) and that will be deducted from your sentence. Conditional sentence order You serve your jail sentence while living at home. You will be under supervision and have to report periodically.