Sentencing Principles

When a judge is determining your sentence, a variety of factors come into consideration. According to s.718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions. A judge will consider aggravating or mitigating factors. An aggravating factor can increase the severity of the sentence, and may include things such as your prior criminal record. A mitigating factor, such as being a first-time offender, can decrease the punishment.

Under s.718, a just sentence must pursue one or more of the following objectives:

denounce unlawful conduct and the harm done to victims or to the community; deter the offender and other persons from committing offences; separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; and promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

The sentence must also be proportionate to the gravity of the offence and the offender's degree of responsibility for it.

A judge will have different options when it comes time to hand down a punishment including:

Absolute or Conditional Discharge The court may allow you to be discharged of your offence after a finding of guilt and no conviction will be registered. An absolute or conditional discharge is only ordered for less serious offences. A judge can order a conditional discharge with specific conditions to address your conduct that led to the offence. You must agree to the conditions for a set period through a probation order. The conditions could include getting treatment or counselling, staying away from places specified by the court, or not drinking or using drugs. If you meet the conditions, you will be discharged once the probation period is over.

Suspended Sentence and Probation A judge can delay imposing a sentence and release you on probation for a specified length of time. Your punishment may also include a fine or conditional discharge. During the probation period you remain out of custody. You will be supervised by a probation officer and must abide by any conditions set out by the judge.

Fine As the term implies you will have to pay a monetary fine as punishment for committing a criminal offence. You may still have to go to jail as well as pay the fine, or you can be placed on probation. If you fail to pay the fine, the government may refuse to issue, renew, or may suspend, a licence or a permit. The Attorney General may also file the unpaid amount as a civil judgment debt, enforceable through civil court. You can also be jailed for failing to pay.

Conditional Sentence If you have been sentenced to less than two years in jail, the court may allow you to serve the sentence in the community with certain conditions. You are not eligible for a conditional sentence if your offence carries a mandatory minimum penalty, or if it is a terrorism or criminal organization offence prosecuted by indictment with a maximum term of 10 years or more. Three specific offences are also excluded: attempted murder under s.239(1)(b), torture under s.269.1, and advocating genocide under s.318. The rules about which offences qualify have changed over time. If you are unsure whether a conditional sentence is available in your situation, a criminal defence lawyer can advise you.

Intermittent Sentence If your sentence is 90 days or less, the judge may allow you to serve it intermittently, such as on weekends. This is permitted so the offender can continue school, work, or attend to other matters. While you are out of jail you are under a probation order which governs your conduct.

Imprisonment Imprisonment is the harshest penalty a judge can impose. If you receive a sentence of two years less a day you will be sent to a provincial correctional institution. If you receive a term of more than two years, you will serve your time in a federal penitentiary.

dangerous offenderDesignation for repeat, violent offenders s Status (Indeterminate Sentence) If you commit an offence that causes serious personal injury you may be declared a dangerous offender after a special hearing. The court must impose an indeterminate period of imprisonment, which has no end date, unless it is satisfied that a lesser sentence would adequately protect the public. The Parole Board of Canada will review your case after seven years and every two years after that to decide if you should receive parole.

Life Sentences If you have been convicted of murder you will receive a lifetime prison sentence. If you are convicted of first-degree murder, you will not be eligible for parole until you have served at least 25 years of your sentence. If you are found guilty of second-degree murder, you are not eligible for parole until you have served between 10 and 25 years (parole eligibility is decided by the judge).

Victim Surcharge A victim surcharge is automatically imposed when you are sentenced and equals 30 per cent of any fine levied. If no fine is imposed, you will be charged $100 for a summary convictionLess-serious criminal offences offence or $200 for an indictable offenceA more serious type of Canadian criminal offence.. The surcharge supports programs and services for victims of crime. A judge can waive the surcharge or reduce it if paying it would cause you undue hardship, or if it would be out of proportion to the gravity of the offence. In some cases, the court may order a higher surcharge if it is appropriate and the offender can afford to pay it.

Restitution You may be required to pay restitution to your victim to compensate for any money they lost as a result of your crime or to repair or replace damaged property. The judge will base the amount on the victim's records of their actual financial losses caused by you.

When deciding on a punishment, a judge may rely on victim or community impact statements. A victim impact statement describes the physical or emotional harm, property damage or economic loss suffered as a result of the crime. 

According to the DoJ, anyone “who has suffered physically or emotionally, or who has had their property damaged or lost money, as a result of an offence committed against them or another person” can prepare a victim impact statement. Under the Criminal Code a victim is a person affected by a crime committed against another person, such as a family member or loved one.

A community impact statement is prepared by a person on behalf of a community and details the harm or loss suffered as a result of an offence.

Before handing down a sentence, the judge will conduct a hearing where you and the Crown prosecutorA lawyer who conducts a criminal prosecution on behalf of the public. will have the chance to present arguments about what the appropriate sentence should be. You can call evidence and make submissions to support your reasons. The judge may also order a Pre-Sentence Report before passing sentence.