Sentencing

How It Works

Sentencing is the process by which a judge determines the appropriate legal punishment for a person convicted of a criminal offence. After a guilty verdict or plea, sentencing is the next critical phase in the Canadian criminal justice system. Here’s a detailed explanation of sentencing in Canada:

1. Overview of Sentencing

Definition:

Sentencing is the judicial determination of a penalty or punishment for a person convicted of a crime. The sentence reflects the gravity of the offence, the circumstances of the accused, and the principles of Canadian criminal law.

Purpose:

  • Punishment: To impose a penalty that reflects the severity of the crime and the accused’s level of responsibility.

  • Deterrence: To discourage the accused and others from committing similar crimes in the future.

  • Rehabilitation: To provide opportunities for the accused to reform and reintegrate into society.

  • Protection of Society: To safeguard the public by imposing measures that prevent future criminal behaviour.

Legal Framework for Sentencing

Criminal Code of Canada:

Sections 718-718.2: These sections outline the principles and purposes of sentencing, including proportionality, parity, and the consideration of mitigating and aggravating factors.

Sentencing Guidelines:

Case Law and Precedent: Judges rely on previous court decisions and established guidelines to determine appropriate sentences for specific offences.

The Sentencing Process

  • Pre-Sentence Reports

    Purpose: A pre-sentence report is prepared by a probation officer and provides the judge with background information on the accused, including their personal history, character, and circumstances that may influence the sentencing decision.

    Content: The report may include details on the accused’s family life, employment, mental health, substance abuse issues, and prior criminal record. It also includes recommendations for appropriate sentencing options.

  • Victim Impact Statements:

    Purpose: Victim impact statements allow victims or their families to describe the emotional, psychological, and financial effects of the crime. These statements can influence the judge’s sentencing decision.

    Content: Victim impact statements may describe the harm suffered by the victim, the impact on their life, and any ongoing needs for restitution or support.

  • Sentencing Submissions

    Prosecution’s Submission: The prosecution presents arguments for an appropriate sentence, emphasizing the seriousness of the offence, any aggravating factors, and the need for deterrence and public safety.

    Defence’s Submission: The defence presents mitigating factors, such as the accused’s remorse, efforts to rehabilitate, or challenging personal circumstances, and argues for a more lenient sentence.

Judge’s Decision:

  • Balancing Factors: The judge considers both aggravating and mitigating factors, the severity of the crime, the accused’s personal circumstances, and the principles of sentencing. The judge’s decision must reflect a fair and proportional punishment.

  • Pronouncement of Sentence: The judge announces the sentence in open court, explaining the reasoning behind the decision and how the sentence aligns with legal principles.

Types of Sentences

1. Custodial Sentences:

  • Imprisonment: The most severe form of punishment, where the accused is sentenced to serve time in a correctional facility. The length of imprisonment depends on the offence and any mandatory minimum sentences.

  • Intermittent Sentences: For sentences of 90 days or less, the judge may allow the accused to serve the sentence intermittently (e.g., on weekends), allowing them to maintain employment or family responsibilities.

2. Non-Custodial Sentences:

  • Probation: A period of supervision in the community, with specific conditions that the accused must follow, such as regular meetings with a probation officer, attending counselling, or avoiding certain activities or places.

  • Fines: A monetary penalty that the accused must pay. Fines are often imposed for less serious offences or as part of a broader sentence.

  • Community Service: The accused may be required to perform a certain number of hours of community service as part of their sentence.

3. Conditional Sentences:

  • Definition: A conditional sentence allows the accused to serve their sentence in the community under strict conditions, such as house arrest, curfew, or electronic monitoring, instead of in prison.

  • Eligibility: Conditional sentences are available for certain offences where the sentence is less than two years and where the judge believes the accused does not pose a significant risk to the public.

4. Restitution:

  • Definition: Restitution requires the accused to compensate the victim for financial losses resulting from the crime, such as property damage, medical expenses, or lost income.

  • Purpose: Restitution aims to restore the victim to the position they were in before the crime occurred.

Aggravating and Mitigating Factors

1. Aggravating Factors:

  • Definition: Aggravating factors are circumstances that increase the severity of the offence or the accused’s level of responsibility. These factors can lead to a harsher sentence.

  • Examples: Use of violence or weapons, targeting vulnerable victims, committing the crime while on bail or probation, or showing a lack of remorse.

2. Mitigating Factors:

  • Definition: Mitigating factors are circumstances that reduce the accused’s level of responsibility or demonstrate a lower degree of harm. These factors can lead to a more lenient sentence.

  • Examples: First-time offender, showing remorse, cooperating with the investigation, or taking steps toward rehabilitation.

Role of the Defence Lawyer in

Sentencing

Sentencing is a critical phase in the Canadian criminal justice process, where the consequences of a guilty verdict are determined. The sentence must reflect the severity of the crime, the circumstances of the accused, and the need for justice and public safety. Defence lawyers play a vital role in advocating for fair and just sentences, ensuring that the accused’s rights are protected, and that the punishment fits both the crime and the individual.

1. Advocacy:

  • Presenting Mitigating Factors: The defence lawyer presents arguments and evidence that support a more lenient sentence, emphasizing the accused’s positive attributes and efforts to reform.

  • Challenging Aggravating Factors: The defence lawyer may challenge the prosecution’s presentation of aggravating factors, arguing that they should not be given undue weight in the sentencing decision.

2. Negotiating Sentencing Options:

  • Plea Bargains: In some cases, the defence lawyer may negotiate a plea bargain with the prosecution, where the accused agrees to plead guilty in exchange for a more lenient sentence.

  • Alternative Sentencing: The defence lawyer may advocate for alternative sentencing options, such as probation, community service, or a conditional sentence, if appropriate for the accused’s circumstances.

3. Preparing for Appeals:

  • Appeal Grounds: If the sentence is overly harsh or legally incorrect, the defence lawyer may prepare for an appeal, seeking a review of the sentencing decision by a higher court.