QUICK TAKEAWAY
Sentencing Principles: You have been charged with a Criminal Code offence and convicted in court. Now you are facing punishment. Sentencing can take place immediately after you have been found guilty or it could be put over for another day. If you are pleading guilty, you may have agreed to joint submission on the punishment in exchange for you admitting your part in a crime. There are a number of principles that go into determining a sentence, including the need to deter an offender or other people from committing crimes. In determining punishment, a judge can consider submissions from the offender as well as their victims, in what is called a victim impact statementA description of the physical or emotional harm, property damage or economic loss suffered as a result of the crime. A judge will also consider issues that could lessen your sentence or increase it, respectively known as mitigating and aggravating factors.
Table of Contents:
What Are Sentencing Principles?
If you have been found not guilty of an offence it means you are acquitted of the charge and free to go, unless you have been found not guilty because of a mental disorder. The court will take a variety of issues in mind when arriving at a sentence. According to the Department of Justice (DoJ), your punishment will depend on your degree of responsibility in the crime.
When ruling on a penalty, a judge will consider aggravating or mitigating factors. An aggravating factor can increase the severity of the sentence, and include such things as your criminal record. A mitigating factor can include that fact that you are a first-time offender and that can decrease the punishment.
The DoJ states the main purpose of sentencing “is to contribute to respect for the law and to a just, peaceful, and safe society by imposing fit sentences” that have one or more of the following objectives:
- denounce the unlawful conduct and harm to the victim;
- deter the offender and others from committing such crimes;
- separate offenders from society when necessary;
- assist in rehabilitating the offender;
- provide reparations for harm done to the victim and the community; and
- promote a sense of responsibility in offenders and acknowledgment of the harm done.
The sentence should match the offender's degree of responsibility for the offence.
Type of Sentences
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 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 and well as pay the fine or you can be placed on probation. If you fail to pay the fine you may end up being sued in civil court. If you fail to pay the fine, the provincial or federal government may refuse to issue, renew, or may suspend, a license or a permit. 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 is punishable by a mandatory minimum penalty, for offences punishable by a maximum prison term of 10 years, and for all offences punishable by a maximum term of imprisonment of 14 years or life imprisonment.
Intermittent Sentence
If your sentence is 90 days or less, the judge may allow you to serve it intermittently, such as one weekend. This is permitted in cases so the offender can go to school or 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 Offenders Status (Indeterminate Sentence)
If you commit an offence that causes serious personal injury you may be declared a dangerous offenderDesignation for repeat, violent offenders after a special hearing. You will be sentenced to an indeterminate period of imprisonment that does not have an end date. 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 will be ordered when you are sentenced and be 30 per cent of any fine levied. If no fine is imposed, you will be charged $100 for a summary convictionUsed for lesser offences offence or $200 for an indictable offenceIndictable offences are more-serious criminal offences. The victim surcharge is to develop and provide programs, services, and assistance for victims of crime. The court has the option of increasing the surcharge.
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 his or her actual financial losses caused by you.
Victim/Community Impact Statements
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.
Sentence hearing
Before handing down a sentence, the judge will conduct a hearing where you and the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown 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.
KelownaLawyersNear Me
Johnson Colby
Selamaj Law
Eq One Law
Newcombe & Company Law Office
John P. Gustafson B.A., Ll.B.
FH&P Lawyers
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Dangerous offender
A person may be found to be a dangerous offender if they are convicted of a serious personal injury offence and the court considered them a threat to the life, safety or physical or mental well-being of others. They can also be designated as such if they show they cannot restrain their behaviour or are indifferent to the foreseeable consequences other people will suffer due to their actions. If the court finds an offender to be a dangerous offender, it will impose a sentence of detention in a penitentiary for an indeterminate period.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
