Overview of Sentencing
- to denounce unlawful conduct;
- to deter the offender and other persons from committing offences;
- to separate offenders from society, where 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 the offenders, and acknowledgement of the harm done to victims and to the community.” (Criminal Code, s. 718).
In order to determine a sentence that is fair, the court will consider statutory provisions of the Criminal Code of Canada (and other relevant legislation) in addition to case law, in order to ensure similar treatment for similar offenders. The judge will consider a variety of factors including age and likelihood the offender’s rehabilitation, and the circumstances which surrounded the crime’s commission.
Factors considered to determine the severity of a crime and thus the expected severity of the sentence are classified as either aggravating or mitigating factors. An aggravating factor makes the offence worse. A mitigating factor reduces the seriousness of the offence. The court will consider whether or not the crime was motivated by hate of an identifiable group, whether or not they abused a spouse or a child, or otherwise abused a position of trust, and if the criminal offence was committed in connection to a criminal organization (Criminal Code, s. 718(2)), subject to other aggravating circumstances listed by the Criminal Code of Canada. Although the Criminal Code does not explicitly list any mitigating circumstances, a court will often give consideration where the accused plead guilty, or cooperated with a police investigation for example, the person’s age and whether this is their first offence.
Absolute & Conditional Discharge
In situations where the judge determines it is in the best interest of both the accused and the public interest not to give the offender a criminal record, they may order that the accused be granted either a conditional or absolute discharge (Criminal Code, s. 730(1)). A discharge is considered to be the lowest level sentence that an offender can receive because the discharge does not carry with it any jail time, the offender is not deemed to have been “convicted,” and the finding of guilt will be expunged from the offender’s criminal record. As a result of the absolute discharge, the offender’s charges are completely resolved and there is no further action required by the offender.
In contrast, a conditional discharge will often be accompanied by a probation order (Criminal Code, s. 731(2)) where the offender is required to keep the peace and be of good behaviour, refrain from being in possession of drugs, alcohol, etc. A conditional discharge will remain accessible on the offender’s criminal history for a period of up to three years after the probation condition has expired. The offender need not apply for a pardon, however, in order for the discharge to be removed from their file.
A suspended sentence IS a criminal record. The offender is convicted and a criminal record will remain in perpetuity absent explicit action taken by the offender to have the record suspended (the pardon language no longer exists – it is now called a record suspension).
The suspended sentence is usually followed by probation but otherwise there is no jail, nor any fine payable (except the surcharge – see below).
In the event that an offender is convicted of a low level crime that does not have a mandatory minimum sentence attached, the court may elect to release the offender on the conditions of a probation order. The court will consider the “age and character of the offender, the nature of the offence and the circumstances surrounding its commission,” (Criminal Code, s. 731(1)) in order to determine whether or not a probation order meets the principles of sentencing (as outlined in the “Overview” section). Anyone that has been sentenced to a jail term of less than two years is also subject to a probation order of up to three years.
Below is a list of the compulsory conditions of a probation order, where applicable:
- keep the peace and be of good behaviour;
(a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless
- the victim, witness or other person gives their consent or, if the victim witness or other person is a minor, the parent or guardian, or any other person who has th lawful care or charge of them, gives their consent, or
- the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition;
- appear before the court when required to do so by the court; and
- notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.”(Criminal Code, s. 731.1(2))
In addition to the compulsory conditions outlined above, a probation order may include conditions which require that the offender does not consume any illicit drugs, in addition to alcohol or any other “intoxicating substance,” and at the request of the probation officer, submit to a drug test. Other common conditions include the completion of a specified number of community service hours, pay restitution to the victim(s) for any loss they may have caused, and participate in a drug treatment program.
If an offender breaches a condition of their probation and does not provide a reasonable excuse, they are guilty of a criminal offence which may be pursued either as an indictable offence with a maximum penalty of two years imprisonment, or on summary conviction with a maximum penalty of eighteen months and/or a fine not exceeding $2,000 (Criminal Code, s. 733.1). Where an offender fails to comply with a probation order, they will be subject to time served in custody until a bail hearing, or if bail is denied, a hearing on whether or not the accused did in fact breach their probation.
Fines & Victim Fine Surcharge
A court may fine an offender in lieu of, or in addition to a term of imprisonment, subject to statutory guidelines for a minimum or maximum fine amount. The court must first determine whether or not the offender has the ability to pay the fine, and may even seek to pay the fine with money found on the offender at the time of arrest (Criminal Code, s. 734(6)). It is important that the fine be paid in full, or at the minimum that the court endorsed payment plan is followed, otherwise the offender is subject to imprisonment for defaulting payment of the fine. The court is required to clearly explain the required payment terms for the fine, how the offender can submit payments, etc.
Despite an Ontario Court Justice recently striking down the mandatory victim fine surcharge as unconstitutional, Ontario Superior Court Justice Bruce Glass has upheld the constitutionality of the mandatory surcharge, subject to appeal (current May 2015). The victim fine surcharge, which required that the offender pay an additional 30% of any fine imposed by the court for an offence, otherwise $100 for every summary conviction and $200 for any indictable conviction (Criminal Code, s. 747(2)), has been a hotly debated topic and will surely continue to be one.
An intermittent jail sentence, otherwise known as serving “weekends,” is a sentencing option a judge may consider as an alternative to a traditional “consecutive days,” sentence where the imprisonment is for ninety days or less. A successful argument for an intermittent sentence is often made where the offender is gainfully employed or enrolled in school. If the court determines that an intermittent sentence is helpful to the offender’s outlook for rehabilitation, while adequately satisfying the principles of sentencing, the judge may grant the request. In the event that an intermittent sentence is handed down, the offender will satisfy the sentence by serving chunks of time, for example during the week or on weekends (as determined by the court), until the required number of days has been served. During the time where the offender is not in custody, they will be required to abide by a set of probationary terms.
Where a court imposes a sentence of imprisonment of less than two years and is “satisfied that the service of the sentence in the community would not endanger the safety of the community,” (Criminal Code, s. 742(1)) in addition to meeting the requirements to both punish but also aid in the rehabilitation of the offender, the court may consider a conditional sentence order. A conditional sentence is characterized as an imprisonment sentence that is an alternative to serving time in jail, in order to supervise the offender’s behaviour in the community, often under “house arrest,” accompanied by a strict set of conditions (Criminal Code, s. 742(1)). The conditions accompanying a conditional sentence are typically that the offender remains at home at all times, with the exception of going to work and school, for medical emergencies and other health related appointments. Conditional sentences are almost always accompanied by a curfew, and the offender must work with a probation officer in order to meet conditions.
If the offender breaches the conditions of the sentence, they will be held in custody either until they are granted release (bail), or pending a hearing on whether the breach occurred. An offender that is alleged to have breached their conditions may be arrested on the suspicion of a breach without a warrant, and the onus is on them to provide a reasonable excuse for the alleged breach (Criminal Code, s. 742.6(1)).
Parliament has recently made amendments to the Code that remove a conditional sentence as a viable sentencing option for certain types of offences.
A custodial sentence, also known as imprisonment, “jail time,” etc. is imposed where an offender has been convicted of an offence that carries with it a mandatory minimum sentence, or, in order to satisfy the principles of sentencing, the court determines it is required. An offender that has been convicted of a summary offence, unless stated otherwise within legislation, is liable to a maximum of six months imprisonment. Those found guilty of an indictable offence are liable to a maximum of life in prison and potentially subject to mandatory minimums for specific offences.
Where an offender is sentenced to an imprisonment term of less than two years, the offender may be eligible to receive a conditional sentence (discussed above). If denied a conditional sentence, an offender serving less than two years will serve their sentence in a provincial jail, and may also be granted early release for good behaviour after serving two thirds of their sentence. Sentences of more than two years imprisonment are to be carried out in a federal penitentiary. An offender serving more than two years may be eligible for parole in as soon as one third of their total time has been served, unless the sentence expressly determines the earliest possible parole submission. If eligible, an offender that is not deemed to be of high risk to the public may achieve statutory release after they have served two thirds of their total prison sentence. However, Correctional Service of Canada (CSC) will continue to supervise the offender in the community and they may be returned to prison if they are determined to present a risk to society.
Where an accused person has served time in remand jail prior to a finding of their guilt, a judge may grant additional credit for time served, at a ratio of up to 1.5 days for every 1 day served. This often occurs where an accused person has endured exceptional circumstances while in custody, or simply served a considerable amount of time prior to their finding of guilt and subsequent sentencing. Prior to recent legislation, it was common for an accused serving pre-trial custody to receive 2:1 or even 3 days credit for every one day served in remand jail.
Note: For statutory guidelines and principles for sentencing regarding a specific type of charge, please refer to the corresponding page found at Practice Areas