SentencingSentencing

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SentencingSentencing

From Section 718.1 of the From Section 718.1 of the Criminal Criminal CodeCode

The fundamental purpose of The fundamental purpose of sentencing is to contribute, along with sentencing is to contribute, along with crime prevention initiatives, to respect crime prevention initiatives, to respect for the law and the maintenance of a for the law and the maintenance of a just, peaceful, and safe society by just, peaceful, and safe society by imposing just sanctions that have one imposing just sanctions that have one or more of the following objectives…or more of the following objectives…

SentencingSentencing to denounce unlawful conduct;to denounce unlawful conduct; to deter the offender and other persons to deter the offender and other persons

from committing offences;from committing offences; to separate offenders from society, to separate offenders from society,

where necessary;where necessary; to assist in rehabilitating offenders;to assist in rehabilitating offenders; to provide reparations for harm done to to provide reparations for harm done to

victims or to the community; andvictims or to the community; and to promote a sense of responsibility in to promote a sense of responsibility in

offenders, and acknowledgment of the offenders, and acknowledgment of the harm done to victims and to the harm done to victims and to the communitycommunity

ActivityActivity

What would be the sentencing objective(s) in What would be the sentencing objective(s) in the following scenarios?the following scenarios? An offender is charged with his/her second An offender is charged with his/her second

impaired driving offenceimpaired driving offence A first time offender with an alcohol abuse problem A first time offender with an alcohol abuse problem

is charged with assault causing bodily harmis charged with assault causing bodily harm An offender is charged with robbery with a weaponAn offender is charged with robbery with a weapon An offender is charged with importing narcotics An offender is charged with importing narcotics

into Canadainto Canada A father ends the suffering of his severely disabled A father ends the suffering of his severely disabled

child and is convicted of second-degree murderchild and is convicted of second-degree murder

Sentencing OptionsSentencing Options

IncarcerationIncarceration ProbationProbation DischargeDischarge FinesFines RestitutionRestitution Conditional SentencingConditional Sentencing

IncarcerationIncarceration If sentence > 2 years: Federal penitentiaryIf sentence > 2 years: Federal penitentiary If maximum penalty < 2 years: Provincial If maximum penalty < 2 years: Provincial

institutioninstitution For less serious offences (less than 90 days), the For less serious offences (less than 90 days), the

judge may impose an intermittent sentencejudge may impose an intermittent sentence Criminal Code outlines maximum (and sometimes Criminal Code outlines maximum (and sometimes

minimum) sentencesminimum) sentences Exceptions can be made for a person designated a Exceptions can be made for a person designated a

dangerous offenderdangerous offender Caused serious personal injuryCaused serious personal injury Pose a continued threat to societyPose a continued threat to society Dangerous offenders are subject to an indeterminate Dangerous offenders are subject to an indeterminate

sentence (no max)sentence (no max) Review for parole after 7 years, and every 2 years Review for parole after 7 years, and every 2 years

thereafterthereafter

ProbationProbation no incarceration, but must meet certain no incarceration, but must meet certain

conditions:conditions: keeping the peacekeeping the peace good behaviourgood behaviour making court appearancesmaking court appearances notifying the court of any change in addressnotifying the court of any change in address

Judge may also impose other conditions:Judge may also impose other conditions: Reporting to probation officerReporting to probation officer Remaining within the jurisdictionRemaining within the jurisdiction Abstaining from alcohol/drugsAbstaining from alcohol/drugs Community service (up to 240 hours over 18 Community service (up to 240 hours over 18

months)months)

DischargeDischarge no conviction is recordedno conviction is recorded used if in best interests of offender and publicused if in best interests of offender and public not used if:not used if:

mandatory minimummandatory minimum offence is punishable by 14 years – lifeoffence is punishable by 14 years – life offender must have plead guilty or been found guiltyoffender must have plead guilty or been found guilty

Absolute Discharge:Absolute Discharge: No criminal recordNo criminal record

Conditional Discharge:Conditional Discharge: Must meet conditions under a probation orderMust meet conditions under a probation order Breach of conditions may revoke discharge and result in Breach of conditions may revoke discharge and result in

a new sentencea new sentence

RestitutionRestitution

Compensate victim for harm doneCompensate victim for harm done i.e. replace property, pay for loss of i.e. replace property, pay for loss of

income, moving expensesincome, moving expenses

FinesFines

sum of money paid to courtsum of money paid to court cannot be used as sole sentencing cannot be used as sole sentencing

option for mandatory minimum option for mandatory minimum offencesoffences

court can impose a prison term is court can impose a prison term is offender fails to make paymentoffender fails to make payment

maximum fine for summary maximum fine for summary conviction is $2,000conviction is $2,000

Conditional SentencingConditional Sentencing Term if imprisonment is impose, but sentence is Term if imprisonment is impose, but sentence is

served in the communityserved in the community Conditions attachedConditions attached Key case: R. v. ProulxKey case: R. v. Proulx

Dangerous driving causing death and dangerous driving Dangerous driving causing death and dangerous driving causing bodily harmcausing bodily harm

Conditional sentence not given – objectives of Conditional sentence not given – objectives of denunciation and deterrencedenunciation and deterrence

Manitoba Court of Appeal substitutes conditional Manitoba Court of Appeal substitutes conditional sentencesentence

Supreme Court ruled in favour of original trial judgeSupreme Court ruled in favour of original trial judge 3 part test:3 part test:

no mandatory minimumno mandatory minimum prison term < 2 yearsprison term < 2 years offender not a danger to communityoffender not a danger to community

Sentencing ConsiderationsSentencing Considerations

No “cruel and unusual” punishmentNo “cruel and unusual” punishment Aggravating and Mitigating factorsAggravating and Mitigating factors Parity and TotalityParity and Totality RestraintRestraint

Cruel & Unusual PunishmentCruel & Unusual Punishment

s. 12 of the Charter: “Everyone has the s. 12 of the Charter: “Everyone has the right not to be subject to cruel and right not to be subject to cruel and unusual punishment.”unusual punishment.”

s. 718.1 of the Criminal Code: “A s. 718.1 of the Criminal Code: “A sentence must be proportionate to the sentence must be proportionate to the gravity of the offence and the degree of gravity of the offence and the degree of responsibility of the offender.”responsibility of the offender.”

Proportionality may determine whether Proportionality may determine whether the sentence is “cruel & unusual”the sentence is “cruel & unusual”

Aggravating FactorsAggravating Factors (from s. 718.2 of the Criminal Code):(from s. 718.2 of the Criminal Code): evidence that shows the crime was evidence that shows the crime was

motivated by prejudice or hatemotivated by prejudice or hate evidence the offender engaged in spousal evidence the offender engaged in spousal

or child abuseor child abuse evidence of abuse of trust in relation to evidence of abuse of trust in relation to

the victimthe victim evidence that the offence was committed evidence that the offence was committed

for the benefit of a criminal organizationfor the benefit of a criminal organization evidence that the offence was an act of evidence that the offence was an act of

terrorismterrorism

Mitigating FactorsMitigating Factors

first time offencefirst time offence remorseremorse good charactergood character positive reputation in the communitypositive reputation in the community good employment recordgood employment record engagement in a rehabilitation engagement in a rehabilitation

programprogram

ParityParity

““A sentence should be similar to A sentence should be similar to sentences imposed on similar sentences imposed on similar offenders for similar offences offenders for similar offences committed under similar committed under similar circumstances.” circumstances.” (s. 718.2 of the (s. 718.2 of the Criminal Code)Criminal Code)

TotalityTotality

““Where consecutive sentences are Where consecutive sentences are imposed, the combined sentence imposed, the combined sentence should not be unduly long or harsh.” should not be unduly long or harsh.” (s. 718.2 of the Criminal Code)(s. 718.2 of the Criminal Code)

RestraintRestraint

s. 718.2 of the Criminal Code: “An s. 718.2 of the Criminal Code: “An offender should not be deprived of offender should not be deprived of liberty, if less restrictive sanctions liberty, if less restrictive sanctions may be appropriate in the may be appropriate in the circumstances.”circumstances.”

The Role of the VictimThe Role of the Victim

As we’ve seen, under Retributive Justice As we’ve seen, under Retributive Justice (upon which our system has historically (upon which our system has historically been based), the role of the victim is been based), the role of the victim is minimizedminimized Crime is seen as a conflict between the Crime is seen as a conflict between the

offender and societyoffender and society As more Restorative Justice principles As more Restorative Justice principles

enter into our system , victims have enter into our system , victims have become more involved in the process, become more involved in the process, particularly during sentencingparticularly during sentencing

The Role of the VictimThe Role of the Victim

In 1999 the Criminal Code was In 1999 the Criminal Code was amended to include the right of a amended to include the right of a victim to prepare and read a victim victim to prepare and read a victim impact statement in courtimpact statement in court

Also requires offenders to pay fines Also requires offenders to pay fines (victim surcharge) in addition to their (victim surcharge) in addition to their sentencesentence

Victim Impact StatementsVictim Impact Statements

Details the harm/loss suffered as a result Details the harm/loss suffered as a result of the offenceof the offence

Can read in court or present in any other Can read in court or present in any other manner considered appropriate by the manner considered appropriate by the courtcourt

Spouse/partner/family can write the Spouse/partner/family can write the statement if the victim is dead or illstatement if the victim is dead or ill

Is optional, but if submitted must be Is optional, but if submitted must be considered  by judgeconsidered  by judge

Copy provided to the offender, the Copy provided to the offender, the defense, and the Crowndefense, and the Crown

Victim Impact StatementsVictim Impact Statements

What’s the point?What’s the point? Provides closure for victimsProvides closure for victims Court can hear firsthand the impact of Court can hear firsthand the impact of

the crimethe crime

Victim SurchargeVictim Surcharge

Imposed in addition to whatever sentence the Imposed in addition to whatever sentence the court imposes (including absolute discharge)court imposes (including absolute discharge)

Money goes to victims’ assistance programsMoney goes to victims’ assistance programs If sentence is a fine, victim surcharge = 15%If sentence is a fine, victim surcharge = 15% For non-fine sentences, surcharges are at For non-fine sentences, surcharges are at

least $50 (summary) and $100 (indictable)least $50 (summary) and $100 (indictable) There is no maximum surchargeThere is no maximum surcharge

Offender can be exempted from surcharge if Offender can be exempted from surcharge if they can establish undue hardshipthey can establish undue hardship