Blog
Céline Dostaler
How a sentence is determined
After an accused is convicted, the judge’s next task is to arrive at an appropriate sentence. This is a complex process since the circumstances surrounding offences are never the same and there are many factors the court must take into consideration. That is why it is impossible to predict exactly what the punishment will be in a criminal trial,
There are many sentencing objectives a judge must balance. They include denunciation, deterrence, protection of the public, rehabilitation, reparation, responsibility and respect for the law. There are also legal principles that must be applied. For example, the Criminal Code dictates that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”
The primary purpose of sentencing is to contribute to respect for the law and to ensure the continuation of a “just, peaceful, and safe society.”
The objectives of sentencing are to:
- denounce the unlawful conduct and harm to the victim;
- discourage 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.
It is important to note that the right to a just sentence is enshrined in the Canadian Charter of Rights and Freedoms. Section12 recognizes the “right not to be subject to any cruel and unusual treatment or punishment.”
Sentences must be in proportion to the crime
The appropriate sentence for a crime can be a hotly contested topic. Some people may feel that more emphasis should be given to punishing the offender while others believe that deterrence and rehabilitation are the main goals of sentencing. Judges consider case law (precedent or judicial decisions from previous cases) and guidance contained in the Code when deciding on a fit punishment.
The Code demands that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” To help judges meet the first objective, the Code lays out the maximum sentences for any crime. Though the Code sets out a maximum sentence for all crimes, people are rarely kept in custody that length of time.
When it comes to the degree of responsibility, a judge will order a harsher sentence if the offender played a key role in the crime. For example, if the accused set the crime in motion or planned it, they will receive a lengthier sentence than someone who joined the criminal action at the last moment.
Sentences must be just. That means they must be in line with other sentences ordered for similar crimes in the same circumstances. In that regard, trial judges must look at the past decisions of higher appeal courts. If the range of cases dealing with a particular offence sets a one-year jail sentence as the top end, a trial judge will know that if they impose a harsher penalty, it could be reversed by an appeal court.
Mitigating and aggravating circumstances
In arriving at a sentence, the court will consider aggravating and mitigating factors. Aggravating factors increase the length of the sentence while mitigating factors result in a lesser sentence.
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 offender’s intimate partner or a member of the victim or the offender’s family were abused;
- there was the use of a weapon
- someone under 18 years of age was abused;
- the offender abused a position of trust or authority in relation to the victim;
- the offence had a significant impact on the victim, which would be learned through the victim’s impact statement;
- the offence was committed for the benefit of or at the direction of a criminal organization;
- the crime was a terrorism offence; and
- if the offender was subject to a conditional sentence or released on parole, statutory release or unescorted temporary absence during the commission of the crime.
Common mitigating factors include:
- no prior criminal record;
- a minor role in the offence;
- circumstances at the time of the offence, such as provocation, stress or emotional problems;
- mental or physical illness;
- evidence of good character;
- an early guilty plea; and
- genuine remorse.
Judicial discretion is paramount
Discretion is an essential element of judicial independence in a democracy. It is commonly defined as making a choice in the absence of a fixed rule with regard to what is fair and equitable under the circumstances and the law. Granting our courts this power promotes a more equitable legal process because judges can consider the individual circumstances of the offender.
It is important to note that discretion is not only in the hands of the judge. Most cases do not go to trial, meaning that most criminal sentences are the result of joint submissions made to the judge by the Crown prosecutor and defence counsel. Judges typically accept such submissions. For that reason, lawyers for both sides are key players in exercising discretion regarding sentences.
Types of sentences
There are many types of sentences or combinations of penalties a judge can give. Here are the most common ones.
Absolute or conditional discharge
After a finding of guilt with a less serious offence, the court can order that an accused be discharged and no conviction registered. With a conditional discharge, the accused must agree to abide by certain conditions for a specified period of time. The conditions may include:
- not drinking alcohol or using drugs;
- not going to specific places or buildings; or
- attending treatment or counselling programs.
At the end of the specified period, the offender will receive a full discharge as long as they have not violated any of the conditions. An absolute discharge comes with no conditions.
Suspended sentence and probation
The court may choose to suspend imposing a sentence and release the offender on probation for a specified length of time. A fine or conditional discharge may also be included with the probation order. A person on probation remains free from custody but is supervised by a probation officer and must follow any conditions included in the probation order.
Fine
This is a set amount of money that the offender must pay to the court. It may be combined with another penalty, such as imprisonment or probation. Failing to pay the fine may lead to a civil judgment against the accused.
Conditional Sentence
Where a person is convicted of an offence and given a sentence of less than two years, the court may allow them to serve their sentence in the community instead of jail.
Imprisonment
This is the most serious sentence given as it deprives a person of their freedom. Sentences of less than two years are carried out in provincial correctional institutions with longer sentences served in a federal penitentiary.
Intermittent sentence
If the sentence is 90 days or less, the court may allow it to be served in blocks of time, such as on weekends. This allows the offender to go to work, attend school or care for family members.
Indeterminate sentence
A person who commits an offence that causes serious personal injury (for example, an indictable offence involving the use of violence against another person) may be declared a dangerous offender and sentenced to an indeterminate period of detention.
The Parole Board of Canada will review the case after seven years and every two years after that.
Restitution
The court may order an offender to pay the victim for money lost as a result of the crime or to repair or replace damaged property.
Life sentences
Those convicted of either first- or second-degree murder must be sentenced to imprisonment for life. Those guilty of first-degree murder are eligible for parole after serving 25 years of their sentence. People convicted of second-degree murder are eligible for parole after serving between 10 and 25 years, as determined by the court.
The only exception is if a convicted person applies, in writing, to the appropriate Chief Justice in the province in which their conviction took place for a reduction in the number of years of imprisonment without eligibility for parole.
Contact me for assistance
I have defended clients in courtrooms across the Ottawa region, working to ensure they receive a fair sentence. If you, a family member or a friend has been charged with a criminal offence, contact me for a free consultation with no obligation.
