Criminal Law

Chapter 9

Melanie Shulman
BCTA 155
Sentencing
 Sentence should be imposed as soon
after finding of guilt as possible
 Can delay it on consent of
Crown/defence for the purpose of
attending a treatment program:
 Addiction
 Anger management
 Domestic violence
Sentencing Hearing
 Crown and defence both make
submissions
 Both can call evidence (witnesses)
 Rules of evidence are relaxed – anything
relevant is allowed
 When facts are in dispute at a sentencing
hearing – the burden is on the person
trying to prove them (through calling
witnesses who can then be cross-
examined) – “Gardiner Hearing”
Pre-Sentence Report
 Prepared by a probation officer at the request of
the court, Crown OR defence
 Contains info such as:
 Offender’s character/attitude towards the offence
and acceptance of responsibility
 Previous criminal record
 History of alternative measures used to deal with the
offender (i.e. counselling, treatment)
 Any other information required by the court
 Probation officer can interview anyone (offender,
family members etc) to gather information
Victim Impact Statement
A victim is anyone to whom harm was
done – physically or emotionally (can be
spouse, dependant or relative)
 Statement is filed at the hearing and the
person may read it out loud before it is
filed
 Victim’s harm can be taken into account
but the victim does not get a say in the
actual sentence
Joint Recommendation
(Submission) on Sentencing
 Joint Submission – a sentencing submission in which
Crown and defence recommend the same sentence to
the judge
 Plea Bargaining – an agreement between the Crown
and defence in which the offender pleads guilty to a
lesser charge, fewer charges or Crown agrees to a
reduced sentence
 Judge does NOT have to accept a joint submission on
sentence. However, Crown always has the right to
withdraw a charge
Sentencing Factors (i.e. what the
judge considers when determining a
sentence)
Six sentencing factors:
Responsibility
Rehabilitation
Denunciation
Reparation
Deterrence
Segregation
Sentencing Factors -
Responsibility
 Responsibility – judge considers how to
promote a sense of responsibility in the
offender

 Also seeks to acknowledge harm done to

the victim and community (and make the
offender acknowledge it)
Sentencing Factors -
Rehabilitation
 To assist in rehabilitating the offender – fix
whatever is wrong in offender’s life that
caused the offence in the first place

 May include treatment programs (i.e.

addiction, anger management) or
education
Sentencing Factors -
Denunciation
 Aimed at condemning or expressing
disapproval of an offence

 Idea is not to teach offender/public a

lesson (that’s deterrence) but to simply
make it clear that society denounces the
actions
Sentencing Factors -
Reparation
 To ”repair” the harm done to the victim or
to society
 Judge will consider – are there things the
accused can do to fix the wrong they
committed?
 May include paying for certain costs the
victim incurred as a result of the crime
Sentencing Principles -
Deterrence
 Deterrence = Trying to prevent the
recurrence of that crime/conduct
 Two kinds:
 Specific – To deter THAT offender from
acting again
 General – To send a message to the
general public that they can expect a
similar sentence if they act similarly
Sentencing Principles -
Segregation
 To separate offenders from society

 If a person is dangerous, putting

them in jail is a way to keep them
away from the society they might
harm
Sentencing – Other
Considerations
 Fundamental Principle - that the sentence be
proportionate to the seriousness of the offence
and the degree of responsibility of the offender
 Aggravating factors (i.e. things that make it
WORSE – should increase the sentence)
 Mitigating factors (i.e. things that make it BETTER –
should decrease the sentence)
Aggravating Factors
 Crime motivated by prejudice/hate based on
race/ethnic origin/religion/sexual orientation
etc.
 Abuse of a spouse or person under 18.
 Offender abused a position of trust or
authority.
 Significant impact on the victim.
 Involvement with a criminal organization (i.e.
gang)
 Offence related to terrorism.
Mitigating Factors
 Early guilty plea
 Remorse
 Offender is seeking (or has sought)
counselling/treatment
 Lack of criminal record
 Age of the offender
 Background of the offender: disability or hardship
 Apology or restitution (before sentencing) paid to
victim
 Offender is gainfully employed
Types of Sentences
 Absolute/Conditional Discharge

 Suspended Sentence/Probation

 Fines/Restitution/Victim Surcharge

 Conditional Sentence

 Imprisonment
Sentence - Discharge
 Discharge is available where there is no minimum
punishment for an offence, maximum punishment is less
than 14 years in jail
 Absolute Discharge – accused is found guilty but a
conviction is not registered
 Conditional Discharge – accused is found guilty and is
given certain conditions to fulfill (similar to probation –
next 2 slides); discharge can be revoked if offender
breaks a condition or commits another crime. If
conditions are fulfilled – no conviction is registered.
Maximum 2 year period.
Suspended
Sentence/Probation
 Suspended Sentence – accused is
sentenced to a certain amount of time in
jail but that sentence is “suspended” (put
on hold) and accused is given conditions
(probation) instead
 Cannot be used where there is a
minimum sentence
 Maximum three years
Suspended
Sentence/Probation
 Probation can be ordered on its own, with a
suspended sentence, or following a jail sentence
 Probation must include:
 Keeping the peace/good behaviour
 Appearing before the court when required
 Notifying court of change of address etc
 Probation MAY include:
 Reporting to probation officer
 Remaining in a certain jurisdiction
 Abstaining from drugs/alcohol/weapons
 Community service
 Anything else the court deems reasonable
Sentencing –
Fines/Restitution/Surcharge
 Fines – for summary, max $5000 ($10,000 for
super summary); for indictable no maximum
 Restitution – court may order that victim be
compensated for losses
 Victim Surcharge – where there is a fine,
victim surcharge of 30% is added. Also
surcharge even where no fine (for summary -
$100, indictable $200). Money does not go to
specific victim but into general fund that
creates social programs
Sentencing - Conditional
 A sentence of up to two years imprisonment
that is served in the community
 Offender must abide by conditions and be
supervised
 More restrictive (harsher) than probation
 For instance – house arrest
 Not available where there is a minimum
punishment or maximum of 10 years or more
Sentencing - Imprisonment
 Imprisonment – the most severe penalty
 Sentences of two years or more are served in
federal prisons; less in provincial
 Imprisonment of 90 days or less can be served as
an intermittent sentence
 Intermittent sentence – to be served during
specific days/times (usually on the weekend so the
offender can work)
 If person is being sentenced on two (or more)
offences, court can decide whether the
sentences are concurrent (served at same time) or
consecutive (served one after the other)
Shortening Jail Time
 Credit for Pre-trial custody – time in jail before the
offender is found guilty; if conditions were difficult,
can count the time in jail as a 1.5 credit (i.e. if the
person spent 10 months in jail before trial, that can
count as 15 months credit)
 Earned remission – “good behaviour”
 Parole Eligibility – automatically considered for
parole after 1/3 of sentence has been served. If
granted, the person is allowed to serve the rest of
their sentence in the community (have to check in
etc. If another crime is committed or conditions of
parole broken – parole can be revoked and the
person returned to jail)
Record Suspension (Pardons)
 Criminal Records are kept by Canadian Police
Information Centre (CPIC)
 Even in cases of discharges and acquittals, there
will be a record for some time (though will be
automatically removed eventually)
 For summary conviction offences – can apply five
years after completion of sentence (ten years for
indictable)
 A pardon means it is taken out of CPIC database
and the person can apply for employment etc
without having to declare it
 It does NOT erase the conviction
Summary Conviction Appeals
 Either side can appeal verdict or
sentence
 Notice of appeal must be filed within 30
days
 Appeal court can affirm, reverse or
modify the conviction OR send the matter
back to summary conviction court (new
trial)