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Tom Rees | Criminal Defence Lawyer Winnipeg
22
Apr

How Does the Judge Decide What Sentence You Get?

 

If a person is convicted of a criminal offence, they are sentenced by a Judge according to certain principles and rules. Different offences have different sentence ranges depending on the circumstances of the offence and the background of the person being sentenced.

Section 718 of the Criminal Code of Canada sets out many of the factors the Judge will consider when sentencing a person.

 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; and

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

During the sentencing hearing, the lawyers make submissions about which factors should be emphasized given the facts of the case and the history of the person being sentenced.

Deterrence and denunciation are significant factors in certain types of offences like impaired driving, drug trafficking, breach of trust thefts and domestic assaults. Other offences like breaching a court order by failing to abstain from alcohol don’t call for the same level of deterrence.

In situations where a person does not have any criminal history or record, a Court can often be persuaded to pronounce a sentence that emphasizes rehabilitation of the convicted person. However, in cases where a person has a lengthy record or a record for violence, prosecutors have an opportunity to argue that a person should be separated from society under s. 718(c) by being put in jail.

The proportionality principle is fundamental to our sentencing regime.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The punishment should fit the crime. A person should not go to jail for two years for stealing a chocolate bar. This concept is a very important component of a fair justice system, and a properly functioning democracy.

The Court also considers Section 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,

    • (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

    • (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

    • (v) evidence that the offence was a terrorism offence

    shall be deemed to be aggravating circumstances;

 

Defence counsel are very careful to highlight the mitigating circumstances when making sentencing submissions for their clients. Crown prosecutors talk about the aggravating circumstances as part of their submissions.

Using an impaired driving case as an example, high blood/alcohol readings, accidents, injuries and property damage would be considered aggravating circumstances. It would be mitigating if it was the person’s first offence, their blood/alcohol reading was low, and the person had completed alcohol counselling.

The Judge must also attempt to give similar sentences for similar offences in similar circumstances. Judges are also directed that a person should not be deprived of their liberty by being sent to jail where other, less restrictive sanctions are available and reasonable in the circumstances.

The Criminal Code also directs Courts to pay particular attention to aboriginal offenders. Our justice system recognizes that a disproportionate number of aboriginal people are in custody in Canada. The Courts have said that just sanctions are those that do not operate in a discriminatory manner. The leading cases on this topic are the Supreme Court cases:

 

The Judge will also consider case-law — cases that have already been decided that are similar enough to provide some guidance — to assist with arriving at a fit sentence. The defence lawyer and the crown prosecutor will often provide casebooks to the court to support their arguments.

A variety of sentences are available for different offences. In general terms, the sentences available in the Criminal Code are as follows:

  • Federal Jail Sentence (2 years or more)
  • Provincial Jail Sentence (less than 2 years)
  • Conditional Sentence (house arrest)
  • Fine
  • Probationary Period (known as a suspended sentence)
  • Discharge
    • Conditional (discharge with a probationary period)
    • Absolute (discharge without a probationary period)

Probationary periods can last for three years and can include a number of conditions like abstaining from consuming alcohol, staying away from certain people or places, reporting to a probation officer, and completing counselling.

When a person receives a discharge, they do not get a criminal record if they complete the probationary period or stay out of trouble for a certain amount of time. The Judge must determine whether it is in the person’s best interest, and whether it is contrary to the public interest when considering if a discharge is appropriate.

It is a good idea to seek the advice of a lawyer before being sentenced by a Court. Sentencing under the Criminal Code can be very complicated and it is important that you know your rights, and about any consequences before you proceed.

 

 

 

 

*note: the information on this page is not legal advice.

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