Sentencing
CLN4U
Sentencing
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From Section 718.1 of the Criminal Code
The fundamental purpose of sentencing is
to contribute, along with crime prevention
initiatives, to respect for the law and the
maintenance of a just, peaceful, and safe
society by imposing just sanctions that
have one or more of the following
objectives…
Sentencing
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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
offenders, and acknowledgment of the harm
done to victims and to the community
Activity
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What would be the sentencing objective(s) in
the following scenarios?
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An offender is charged with his/her second impaired
driving offence
A first time offender with an alcohol abuse problem is
charged with assault causing bodily harm
An offender is charged with robbery with a weapon
An offender is charged with importing narcotics into
Canada
A father ends the suffering of his severely disabled
child and is convicted of second-degree murder
Sentencing Options
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Incarceration
Probation
Discharge
Fines
Restitution
Conditional Sentencing
Incarceration
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If sentence > 2 years: Federal penitentiary
If maximum penalty < 2 years: Provincial institution
For less serious offences (less than 90 days), the judge
may impose an intermittent sentence
Criminal Code outlines maximum (and sometimes
minimum) sentences
Exceptions can be made for a person designated a
dangerous offender
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Caused serious personal injury
Pose a continued threat to society
Dangerous offenders are subject to an indeterminate sentence
(no max)
Review for parole after 7 years, and every 2 years thereafter
Probation
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no incarceration, but must meet certain
conditions:
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keeping the peace
good behaviour
making court appearances
notifying the court of any change in address
Judge may also impose other conditions:
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Reporting to probation officer
Remaining within the jurisdiction
Abstaining from alcohol/drugs
Community service (up to 240 hours over 18 months)
Discharge
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no conviction is recorded
used if in best interests of offender and public
not used if:
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Absolute Discharge:
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mandatory minimum
offence is punishable by 14 years – life
offender must have plead guilty or been found guilty
No criminal record
Conditional Discharge:
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Must meet conditions under a probation order
Breach of conditions may revoke discharge and result in a new
sentence
Restitution
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Compensate victim for harm done
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i.e. replace property, pay for loss of income,
moving expenses
Fines
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sum of money paid to court
cannot be used as sole sentencing option
for mandatory minimum offences
court can impose a prison term is offender
fails to make payment
maximum fine for summary conviction is
$2,000
Conditional Sentencing
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Term if imprisonment is impose, but sentence is served
in the community
Conditions attached
Key case: R. v. Proulx
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Dangerous driving causing death and dangerous driving causing
bodily harm
Conditional sentence not given – objectives of denunciation and
deterrence
Manitoba Court of Appeal substitutes conditional sentence
Supreme Court ruled in favour of original trial judge
3 part test:
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no mandatory minimum
prison term < 2 years
offender not a danger to community
Sentencing Considerations
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No “cruel and unusual” punishment
Aggravating and Mitigating factors
Parity and Totality
Restraint
Cruel & Unusual Punishment
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s. 12 of the Charter: “Everyone has the
right not to be subject to cruel and
unusual punishment.”
s. 718.1 of the Criminal Code: “A sentence
must be proportionate to the gravity of
the offence and the degree of
responsibility of the offender.”
Proportionality may determine whether
the sentence is “cruel & unusual”
Aggravating Factors
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(from s. 718.2 of the Criminal Code):
evidence that shows the crime was motivated by
prejudice or hate
evidence the offender engaged in spousal or
child abuse
evidence of abuse of trust in relation to the
victim
evidence that the offence was committed for the
benefit of a criminal organization
evidence that the offence was an act of
terrorism
Mitigating Factors
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first time offence
remorse
good character
positive reputation in the community
good employment record
engagement in a rehabilitation program
Parity
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“A sentence should be similar to sentences
imposed on similar offenders for similar
offences committed under similar
circumstances.” (s. 718.2 of the Criminal
Code)
Totality
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“Where consecutive sentences are
imposed, the combined sentence should
not be unduly long or harsh.” (s. 718.2 of
the Criminal Code)
Restraint
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s. 718.2 of the Criminal Code: “An
offender should not be deprived of liberty,
if less restrictive sanctions may be
appropriate in the circumstances.”
The Role of the Victim
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As we’ve seen, under Retributive Justice (upon
which our system has historically been based),
the role of the victim is minimized
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Crime is seen as a conflict between the offender and
society
As more Restorative Justice principles enter into
our system , victims have become more involved
in the process, particularly during sentencing
The Role of the Victim
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In 1999 the Criminal Code was amended
to include the right of a victim to prepare
and read a victim impact statement in
court
Also requires offenders to pay fines (victim
surcharge) in addition to their sentence
Victim Impact Statements
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Details the harm/loss suffered as a result of the
offence
Can read in court or present in any other
manner considered appropriate by the court
Spouse/partner/family can write the statement if
the victim is dead or ill
Is optional, but if submitted must be
considered by judge
Copy provided to the offender, the defense, and
the Crown
Victim Impact Statements
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What’s the point?
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Provides closure for victims
Court can hear firsthand the impact of the
crime
Victim Surcharge
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Imposed in addition to whatever sentence the
court imposes (including absolute discharge)
Money goes to victims’ assistance programs
If sentence is a fine, victim surcharge = 15%
For non-fine sentences, surcharges are at least
$50 (summary) and $100 (indictable)
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There is no maximum surcharge
Offender can be exempted from surcharge if
they can establish undue hardship