Sentencing

GENERAL PRINCIPLES OF SENTENCING:

A judge sentences a person after they have been found guilty of a crime (which is not the same as being convicted of the crime).  After a determination is made about the facts being relied on for sentencing, and hearing from both the Crown and the defence about what the appropriate sentence should be, the judge must pick from a number of different sentencing options found in the Criminal Code of Canada, based on a number of factors.

Some offences have a minimum sentence, and there may also be a maximum sentence depending on the nature of the offence. The maximum determinate sentence is a life sentence with a 25 year parole ineligibility period, and all life sentences and related parole ineligibility periods are served concurrently (at the same time). There are also options for an indeterminate sentence.

There is no death penalty in Canada.

Section 718 of the Criminal Code sets out the purposes of sentencing:

• Denunciation
• Deterrence
• Separation of offenders
• Rehabilitation
• Reparation (Restorative Justice)
• Promotion of responsibility

There are a number of other sentencing principles found in sections 718.1 and 718.2 of the Criminal Code:

• The sentence must be proportionate to the nature of the offence.
• The sentence must be reduced or increased depending on the mitigating and aggravating factors (discussed more below).
• The sentence must be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
• If the sentence is consecutive, it must not be unduly long or harsh.
• An offender should not be deprived of their liberty if less restrictive sanctions are appropriate.
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention for aboriginal offenders.

The key principle to be used in any sentence is one of proportionality.  The sentence must be proportionate to the offence committed.

CHARTER OF RIGHTS AND FREEDOMS:

There are a number of constitutional rights guaranteed in the Canadian Charter of Rights and Freedoms that can affect criminal sentencing:

• Section 7 states "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Since most criminal offences come with the risk of imprisonment, which impacts a person's liberty, the principles of fundamental justice must not be violated.
• Section 9 protects everyone from arbitrary imprisonment.
• Section 11(i) states that if the sentencing provisions are changed between the date of the offence and when the defendant is found guilty, the defendant gets the benefit of the lesser punishment.
• Section 12 states that "everyone has the right not to be subjected to any cruel and unusual treatment or punishment." This can impact both the type of sentence available (either generally or as applied to the specific offence) and the lenght of the sentence.

AGGREVATING FACTORS:

There are a number of aggravating factors a judge is required to consider both at common law and by statute. Common-law factors include whether or not the victim was a vulnerable victim.

General statutory aggravating factors are found in section 718.2 of the Criminal Code. They are:

• Motivation due to bias, prejudice, or hate
• Domestic violence
• Abuse of person under 18 years old
• Breach of trust or authority
• Offence was commited for the benefit of, at the direction of, or in association with a criminal organization
• Terrorism offences

There are also specific aggravating factors for organizations found guilty of an offence. In addition, some offences have their own specific aggravating factors. For example, section 255.1 of the Criminal Code makes it an aggravating factor if a person commits a drinking and driving offence when their blood alcohol concentration is more than double the legal limit.

The court is entitled to take into considertation prior findings of guilt.

MITIGATING FACTORS:

There are important factors what would reduce a sentence of an individual, such as:

• Employment
• Dependents
• Remorse
• Reparing the harm (ie. paying restitution if applicable)
• Community Service
• Character references

PRE-TRIAL CREDIT FOR CUSTODY:

If a defendant spent time in custody while awaiting his trial (that is, he was not released on bail), the judge is allowed to take that into account when determining the sentence.  There is no specific formula, but judges generally give a "2 for 1" credit for pre-trial custody.

Pre-trial custody can be used to reduce a minimum sentence.

There is no specific sentencing option called "time served". If credit for pre-trial custody is equal to or greater than what the appropriate sentence would be, the trial judge will either suspend the sentence (discuss in more detail below), or sentence the person to one day (which will have the practical effect of just requiring the person to report once in person to the prison).

Pre-trial custody has no effect on a life sentence, and does not affect when a person can apply for parole. It is sometimes referred to as "dead time".

On October 22, 2009, the Parliament of Canada passed a bill that would mostly eliminate a judge's discretion to give credit for pre-trial custody. Instead, it would allow judges to give one and a half days credit for every day in pre-trial custody, but only in specific circumstances. It has not been announced when the bill will receive Royal Assent or when it will come into force.

OTHER OPTIONS:

The court has a wide variety of sentencing options other than custody:

• Discharge
• Probation
• Fine
• Conditional Sentence
• Dangerous Offender
• Long Term Offender

There are specific sentencing options for young persons that differ greatly then for adults.

Contact the Law Office of Aswani K. Datt for a  consultation. I offer strategic, intelligent and aggressive advocacy focused on your rights.