Blog
Céline Dostaler
What sentence will I face if convicted of a crime?
If you plead guilty to a crime or are found guilty at trial, the court must determine a fair sentence by considering the circumstances, the seriousness of the offence and your degree of responsibility.
A key part of that determination is to look at aggravating and mitigating factors. An aggravating factor increases the sentence, such as if you have a criminal record or if you used a weapon to commit the crime. A mitigating factor decreases the sentence, such as if you are a first-time offender.
The appropriate sentence for a crime is often debatable. Some people feel that more weight should be given to the objectives of deterrence and punishment while others want to focus on rehabilitation. Unlike some other Western countries, Canada does not have sentencing guidelines or a sentencing commission, both of which limit judicial discretion regarding sentencing.
What is the purpose of sentencing?
Section 718 of the Criminal Code notes that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society, by:
- denouncing unlawful conduct and the harm done to victims or to the community;
- deterring the offender and other persons from committing offences;
- separating offenders from society, when necessary;
- assisting in rehabilitating offenders;
- providing reparations for harm done to victims or the community; and
- promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims or the community.
As the Supreme Court of Canada noted in R. v. Nasogaluak, “No one sentencing objective trumps the others.” However, certain objectives weigh more heavily for offences involving:
- abuse of a minor under age 18;
- offences against peace officers and justice system participants;
- killing or injuring a law enforcement or military animal; and
- abuse of a person who is vulnerable because of personal circumstances, including because the person is Aboriginal and/or female.
What are the types of sentences given?
Imprisonment
Imprisonment deprives a person of their freedom. If the court sentence is less than two years, you will be incarcerated in a provincial correctional institution. Any sentence greater than two years will be served in a federal penitentiary. You are more likely to face potential imprisonment if your charge is tried as an indictable offence rather than a summary conviction. You are also more likely to face incarceration if you have been previously convicted of a criminal offence.
Life sentences
In Canada, a murder charge is either prosecuted as first or second degree. People convicted of either charge will be sentenced to imprisonment for life. Those convicted of first-degree murder are not eligible for parole until they have served at least 25 years of their sentence, from the date they were taken into custody. Those convicted of second-degree murder will be eligible for parole in 10 to 25 years, as determined by the court.
Indeterminate sentence for dangerous offenders
After a special application and hearing, a person who commits an indictable offence involving the use of violence or a sexual offence may be declared a dangerous offender and sentenced to an indeterminate period of detention. The Parole Board of Canada reviews the case after seven years and every two years after that.
Mandatory minimum penalties
Mandatory minimum penalties (MMPs) require judges to impose a specific type and minimum length/extent/severity of sentence to an offender upon conviction for specified criminal offences. MMPs are different from regular sentences given by a judge who determines an appropriate sentence by looking at existing jurisprudence, statutory principles of sentencing, case circumstances and sentencing submissions from counsel. MMPs apply to offences that are deemed egregious or irredeemable, such as treason, using a firearm in the commission of an indictable offence, sexual interference and aggravated sexual assault.
Intermittent sentence
If you are given a custodial sentence of 90 days or less, you may be allowed to serve that sentence intermittently or in blocks of time, such as on weekends. This flexibility will allow you to go to work, attend school or care for a family member. An intermittent sentence is accompanied by a probation order, governing your conduct while you are not in jail.
Absolute or conditional discharge
The court can order you discharged of an offence after a finding of guilt, with no conviction registered. These discharges are only given for less serious offences. With a conditional discharge, you must agree to abide by conditions that may include not drinking alcohol or using drugs, avoiding specific places or buildings and seeking treatment or counselling. An absolute discharge has no conditions.
Suspended sentence
The court may choose to put off or suspend imposing a sentence and release you on probation for a specified length of time. You will remain out of custody but will be supervised by a probation officer and you must follow any conditions included in the probation order.
Fine
You may be ordered to pay a set amount of money to the court as a penalty. Fines can also be combined with other penalties, such as imprisonment or probation. Failing to pay the fine may lead to a civil judgment against you. If you are in default of a fine, provincial or federal governments may refuse to issue, renew or may suspend licences or permits until the fine is paid in full. As a final resort, you could be jailed for defaulting on the payment of a fine.
Conditional sentence (house arrest)
If you are given a sentence of less than two years, the court may order that the sentence be served in the community instead of jail, with certain conditions. This sentence is only given if the judge is confident that you are not a danger to the public. A conditional sentence is not available for offences punishable by a maximum term of imprisonment of 10 years or more.
Victim surcharge
A victim surcharge is ordered at sentencing, representing 30 percent of the fine given to an offender. If no fine is imposed, a $100 victim surcharge is given for a summary conviction offence and $200 for an indictable offence. The money collected through the surcharges is paid into provincial and territorial assistance funds to develop and provide programs and assistance for victims of crime.
Restitution
Restitution is paid to the victim as compensation for the crime and may include money to repair or replace damaged property. The court can order restitution as a separate sentence or make it a condition of your conditional sentence, probation or custodial order. If the restitution is not paid within the specified time, the person to whom the restitution is to be paid may file the order in any civil court in Canada. The victim can enforce the order against you in the same manner as a civil judgment, with financial assets seized or having liens on your property.
Alternative Measures
The objective of alternative measures is to divert individuals from the criminal justice system while still holding them responsible for their actions. The offender must consent to participate and accept responsibility for their crime. If the offender complies with the terms and conditions of the alternative measures they will not have a criminal record, though information regarding the matter will be available for two years to law enforcement officers. Alternative measures can include community service, mediation, referrals to specialized counselling programs, treatment, education, victim-offender reconciliation programs, restorative justice initiatives and letters of apology.
Contact me for assistance
If you are facing criminal charges you need an experienced lawyer to guide you through your legal journey, which may include sentencing if you plead or are found guilty. I appear regularly before the Ontario Court of Justice and the Superior Court of Justice in Ottawa, L’Orignal, Brockville, Perth and Pembroke. Contact me for a free consultation to discuss your case in French or English.
