Criminal Defence Lawyers

Knowledge. Experience. Integrity.

Sentencing Hearing Lawyer

Sentencing Hearing Lawyer

At The Defence Group, our goal is to win the best result possible for you. And sometimes, if you did commit the offence you are charged with, the best result possible is a guilty plea to a lesser offence, or a sentencing hearing after a heard-fought trial. Rest assured that we will do everything we can do to win your case, either through negotiations or at trial. Regardless of whether you committed the offence or not, we do not give up on trying to win the case and we consider a guilty plea or a sentencing hearing only as a last resort, after all other options are exhausted. And we do not take any steps without your full cooperation and understanding of what the options are and why.

 

Principles of Sentencing

Purpose and Principles of Sentencing

Purpose
718. 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:

  • a) to denounce unlawful conduct.
  • b) to deter the offender and other persons from committing offences.
  • c) to separate offenders from society, where necessary.
  • d) to assist in rehabilitating offenders.

  • e) to provide reparations for harm done to victims or to the community.
  • f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.

Objectives — offences against children
718.01. When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
2005, c. 32, s. 24.

Objectives — offence against peace officer or other justice system participant
718.02. When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
2009, c. 22, s. 18.

Organizations
Additional factors
718.21. A court that imposes a sentence on an organization shall also take into consideration the following factors:

  • (a) any advantage realized by the organization as a result of the offence
  • (b) the degree of planning involved in carrying out the offence and the duration and complexity of the offence.
  • (c) whether the organization has attempted to conceal its assets, or convert them, in order to show that it is not able to pay a fine or make restitution.
  • (d) the impact that the sentence would have on the economic viability of the organization and the continued employment of its employees.
  • (e) the cost to public authorities of the investigation and prosecution of the offence.
  • (f) any regulatory penalty imposed on the organization or one of its representatives in respect of the conduct that formed the basis of the offence.
  • (g) whether the organization was — or any of its representatives who were involved in the commission of the offence were — convicted of a similar offence or sanctioned by a regulatory body for similar conduct.
  • (h) any penalty imposed by the organization on a representative for their role in the commission of the offence.
  • (i) any restitution that the organization is ordered to make or any amount that the organization has paid to a victim of the offence; and
  • (j) any measures that the organization has taken to reduce the likelihood of it committing a subsequent offence.

2003, c. 21, s. 14.

Punishment Generally

Degrees of punishment
718.3. (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

Discretion respecting punishment
(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

Imprisonment in default where term not specified
(3) Where an accused is convicted of an offence punishable with both fine and imprisonment and a term of imprisonment in default of payment of the fine is not specified in the enactment that prescribes the punishment to be imposed, the imprisonment that may be imposed in default of payment shall not exceed the term of imprisonment that is prescribed in

Cumulative punishments
(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

  • (a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;
  • (b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;
  • (c) the accused is found guilty or convicted of more than one offence, and
  • (i) more than one fine is imposed,
  • (ii) terms of imprisonment for the respective offences are imposed, or
  • (iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or
  • (d) subsection 743.5(1) or (2) applies.

1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.

The Law of Sentencing

Sentencing provisions can be as lengthy and complex as other areas of criminal law. When someone is found guilty of a criminal offence, the Court has to decide on the appropriate consequence. In doing so, there are certain guiding principles that every Judge must follow:

  • The punishment must fit the particular crime.
  • The punishment must fit the particular offender.

The Criminal Code lists these principles as follows:

Fundamental principle
718.1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.

Other sentencing principles
718.2. A court that imposes a sentence shall also take into consideration the following principles:

  • (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
    • (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.
    • (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner.
    • (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years.
    • (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.
    • (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization.
    • (v) evidence that the offence was a terrorism offence.
      shall be deemed to be aggravating circumstances.

  • (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

  • (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
  • (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.
  • (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25.

Sentencing has a dual purpose:punishment and rehabilitation, and both must be considered by the sentencing judge.

Punishment is society’s way of announcing that it will not tolerate the offence, from this offender, or from anyone else; these principles are known as denunciation and deterrence.

Rehabilitation is society’s way of recognizing that the offender is not a hopeless case, and, with the right programs and incentives, can be encouraged to make better choices in the future, and be a better citizen. Rehabilitation takes many forms, including programs, counseling, reparations, and medical treatment.

A sentencing judge must balance the need for deterrence against the hope for rehabilitation, based on the particular crime and the particular offender. We are fortunate in Canada that offenders are given a fair, balanced, and customized treatment, rather than a “one-size-fits-all” approach that is often imposed in the United States, with its fixed sentencing grids and “three strikes and you’re out’ laws.

The Criminal Code lists the purposes of sentencing as follows:

Purpose
718. 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:

  • 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.
  • to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.

In balancing rehabilitation and deterrence, a Court will consider particular aspects of the crime and the offender. Some of these aspects make the case more serious, and result in greater emphasis on punishment; these are called aggravating factors. Some aspects make the case less serious, and result in greater emphasis on rehabilitation; these are called mitigating factors.

The following are examples of aggravating factors:

  • The victim is a child.
  • Domestic violence.
  • Organized crime.
  • Use of a weapon.
  • The offender has a criminal record.
  • The crime was motivated by prejudice based on race or sexual orientation.

The following are examples of mitigating factors:

  • The offender was provoked
  • The offender is young
  • The offender has no criminal record
  • The offender pled guilty at an early stage
  • The offender has expressed remorse.

The Sentencing Ladder

The best possible result in a criminal case is a withdrawal of the charges, or an acquittal. In either of these scenarios, the result is a verdict of “Not Guilty”.

In some cases, the Crown will agree to withdraw the charges in return for some consequence. In Youth Court, this can mean a caution by police or a warning administered by the Crown; or, as a step up, a program of extra-judicial sanctions which might include an essay or community service. In adult cases, this is called diversion, and it might include a charitable donation.

In adult cases, the Crown might agree to a withdrawal in return for the defendant signing a peace bond. A peace bond is a court order with conditions attached, which you agree to follow. It is similar to bail. The standard terms of a peace bond are that it is in effect for 12 months and carries a financial penalty of $500 if violated. In addition, you could be charged with breaching a court order if you do not comply with its terms. The conditions of a peace bond will depend on the type of case. Typical examples include a “no weapons” condition; or, in domestic violence cases, a prohibition on contact with the complainant unless s/he consents in writing. The big advantage of a peace bond is that it is not an admission or finding of guilt in any way; it does not result in a criminal record, and lets you get on with your life without any serious repercussions.

After an acquittal or withdrawal, the next best result is a plea to a lesser offence under provincial legislation rather than the Criminal Code. The advantage of this is that it is not an admission or finding of guilt to a criminal offence, but rather a mere regulatory infraction that might result in a fine. The most common example of this kind of disposition is when the Crown accepts a plea to “Careless Driving” under the provincial Highway Traffic Act rather than a finding of guilt on a drinking and driving charge under the Criminal Code such as “Over 80” or “Impaired Operation of a Motor Vehicle.”

If a case ends with a judge making a finding of guilt on a criminal charge, the best result is a finding of guilt on a lesser criminal charge than the one you were arraigned on. An example is a finding of guilt for Theft when the original charge was Robbery; or simple Assault when the charge was Aggravated Assault or Attempted Murder.

Once a finding of guilt is made, the best result on sentencing is a discharge. The big advantage of a discharge is that leaves you without a criminal record. There are two types of discharge: an absolute discharge and a conditional discharge. An absolute discharge has no terms or conditions attached, and you are free to leave the courtroom and get on with your life. The only consequence of an absolute discharge is that you were found guilty of a criminal offence. A conditional discharge is like an absolute discharge except that there is a period of probation attached, with conditions, usually for 12 months. The conditions will relate to the case, such as a weapons prohibition or counseling. Once the probation expires, you are left with no other consequences and no criminal record, just as with an absolute discharge.

If the Court is not prepared to let you leave the courtroom without a criminal record, then you will be “convicted” of a criminal offence. A conviction, unlike a discharge, is a finding of guilt that results in a criminal record. A conviction is not a sentence in and of itself; there is a further disposition that will accompany it, such as a fine, a jail term, or probation.

The next step up from a discharge is a conviction with a fine, a term of probation or both. A fine speaks for itself; it is a court order that you pay to the court a sum of money, and you will be given time to pay. The amount of the fine, and how long you have to pay it, will depend on the severity of the offence, and your financial means. Probation is a court order with terms, which lasts up to three years, and which is supervised by a probation officer. The terms will vary depending on the case, and can include restitution, which means repaying money lost by the victim; counseling, for alcohol, drugs, domestic violence or anger management, for example; a prohibition on contact with certain people or from going to certain places; a weapons prohibition; or a requirement that you complete a number of hours of community service. A violation of these terms can result in a criminal charge of ‘breach of probation”.

If probation or a fine is not enough to address the principles of sentencing, a court might impose a period of incarceration. Incarceration means jail. The jail term can be served in the community (a conditional sentence), in a provincial reformatory, or in a federal penitentiary. A conditional sentence is more like probation than like jail, but it is considered to be a sentence of incarceration nevertheless. It is often referred to as “house arrest”. Conditional sentences only apply to certain types of offences, where the term of incarceration is less than two years, and where the offender is not considered to be a danger to the safety of the community. In addition, there is a whole range of offences where a conditional sentence is not available, mainly for crimes of violence.

The following are the Criminal Code provisions that define when a conditional sentence is available:

Imposing of conditional sentence

742.1. If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under section 742.3.
1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1.

752. “serious personal injury offence” means


    • (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

      • (i) the use or attempted use of violence against another person.
      • (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more.
    • (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

    (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
    R.S., 1985, c. C-46, s. 752; 2008, c. 6, ss. 40, 61.

A reformatory sentence is one of less than two years in jail. It is served in a provincial reformatory where there are a limited number of programs and resources available to inmates. Reformatory sentences are often served in the same institution where defendants who do not get bail serve time before trial. A reformatory sentence can be served as “straight time” or as an intermittent sentence. An intermittent sentence is one served a few days at a time, usually on weekends; such a sentence is usually designed to enable less serious offenders to continue working and taking counseling during the week. A typical intermittent sentence is one that starts on Friday at 5 p.m. and ends on Monday at 6:00 a.m., and continues until the sentence is complete or is “remitted”. A straight time sentence is one that is served continuously until it is completed or “remitted”. Remission is a form of early release, without terms, and without requiring the offender to serve out the remainder of the sentence. Offenders serving time in a reformatory are eligible for remission after serving two-thirds of their sentence.

A penitentiary sentence is a sentence of two years or more, and is served in a federal detention facility. Federal penitentiaries have more resources and programs than provincial reformatories, but they house the most serious offenders in the country, including dangerous offenders and long-term offenders. During the first three months of a penitentiary sentence, a federal offender from Ontario will undergo a complete psychiatric and risk assessment at Millhaven Penitientiary in Kingston. During this period, the government will determine which programs and facilities are best-suited for the particular offender, and recommend that s/he be transferred to the appropriate minimum, medium or maximum security institution. Offenders serving penitentiary sentences are eligible for parole after serving a minimum one-sixth of their sentence. Parole is a form of supervised release, determined after a hearing before the Parole Board, and which is intended to be a gradual transition from jail to the community. Parole begins with day passes and progresses to living in the community in a halfway house, followed by a full transition back into the community. In the case of a life sentence, such as for murder, the offender will always be under the federal supervision of a parole order made by the National Parole Board.

A Long-term Offender is a person serving a penitentiary sentence after a special hearing where the Court concluded that s/he is too dangerous to be released into the community without much more strict parole supervision. These offenders are subjected to very strict conditions that are much more onerous than those imposed on regular federal parolees.

A Dangerous Offender is a person who, for all intents and purposes, is too dangerous ever to be let out of jail. While a dangerous offender is eligible for a parole hearing every two years, the reality is that because of their criminal history and the lack of success of previous attempts at rehabilitation, dangerous offenders will never be released back into the community. There are fewer than two hundred dangerous offenders in Canada, and most of them are incurable sex offenders and serial killers.

Preparing for a Sentencing Hearing

If a sentencing hearing becomes necessary, we will prepare just as thoroughly as we would for a trial. Sentencing is an area which is often neglected, yet one which is vitally important, because after all of the analysis and preparation, negotiations and trial, the end result is what counts. A properly prepared and presented sentencing hearing can mean the difference between a conviction, which burdens you with a criminal record, and a discharge, which does not; or the difference between a suspended sentence or jail; or between a jail sentence served in a detention centre, or one served at home. There are many other ways in which we can win the best result for you once the trial is over. We will analyze and discuss with you, depending on your case, the pros and cons of a penitentiary versus a reformatory sentence; eligibility for parole or remission; or the effect of pre-trial custody, and tough bail conditions on sentence reduction. If you are going to serve a period of probation, we negotiate or fight for the best terms, or access to the best programs. If you are serving a federal sentence, we will set up the most effective scenario for your upcoming parole hearing.

We will also advise you on which “ancillary” orders you can expect, including a DNA order, firearms prohibition, or, in sex offence cases, the provincial and federal sex offence registries and related provisions.

What is a “pardon”?

A pardon is society’s way of recognizing that an offender has paid his or her dues for the crime s/he committed and that enough time has now passed, without any further offences being committed, so that s/he can have the crime erased from their record.

Depending on the particulars of the crime and how much time has elapsed since you were sentenced, you might be eligible to seek a pardon. At The Defence Group, we can take care of all aspects of seeking a pardon, as well as applying for the destruction of your fingerprints and “mugshot” on file with the police.

Back

Request Info

Please select the Star and click the SUBMIT button.

Refresh


Submit

Twitter Feed

43.64791946079025 -79.3767381845644
View Map

© 2017 The Defence Group. All Rights Reserved.
Powered by TechWyse