Criminal sentencing in Canada

This article is about criminal sentencing in Canada. For a world wide view, see sentence (law).

In Canada, 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).^[1] 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.

Sentencing hearing

When a person is found guilty of a crime, a finding has been made that all essential elements of the offence have been met (either by admission through a guilty plea or after the elements have been proven beyond a reasonable doubt in a trial). However, there may be facts that did not have to be determined for the defendant's guilt to be decided (i.e. severity of a victim's injuries, motivation for the crime, etc.). If the guilty verdict was determined by a jury, the judge may have to determine what facts the jury relied on to reach their verdict (since jury deliberations are confidential in Canada^[2]).

When the additional facts are in dispute, the party relying on the fact has the burden to prove it. The general standard of proof at a sentencing hearing is a "balance of probabilities". However, if the Crown is relying on an aggravating fact or a prior conviction, the burden of proof is "beyond a reasonable doubt".^[1]

There are a number of exceptions to the normal rules of evidence. For example, the judge may permit hearsay evidence. A probation officer can interview the defendant and other people associated with the defendant and file a report. A victim impact statement may be filed with the court (with the option of having it read out by the victim). The defendant is also given an opportunity to personally speak to the court.^[1]

Appeals

Either the Crown or the accused may appeal against a sentence (see section 675 of the Criminal Code of Canada). An appellant must demonstrate that either the sentence imposed was "demonstrably unfit" or the court "erred in principle", for example by placing undue emphasis on a particular sentence principle. Except for an appeal against a finding that the accused is a dangerous or long-term offender, the court upon allowing an appeal must then determine a fit sentence and may not remit the matter back to the court of first instance. The court of appeal considers the sentence anew and the sentence may be more or less severe than the sentence imposed, regardless of who appealed; this is referred to as the "Hill Principle" (see R. v. Hill).

There are some additional considerations taken into account at an appeal. Given the high stakes for both the accused and the safety of the public, fresh evidence of post-sentence conduct is routinely admitted. Where the appellant was granted bail pending appeal and has presented fresh evidence indicating that reincarceration would be unduly harsh, the court of appeal may reduce a sentence despite the absence of a reviewable error. Where the Crown appeals against the sentence and the court of appeal determines that a longer period of incarceration is warranted, the court will often stay the order if the accused has been out of custody for a lengthy period of time or has fully complied with the terms of a non-carceral sentence. The court of appeal will only order the reincarceration of the accused in cases where the facts support it or where the additional period of incarceration is substantial. Accused persons will also be given credit for complying with the terms of a non-cerceral sentence.

Variations

Under the Criminal Code and the Youth Criminal Justice Act the original sentencing judge retains jurisdiction to vary a sentence imposed under a very limited number of circumstances. A probation order can be varied at the request of the accused, probation officer or the prosecution. Under s. 732.2(3) of the Criminal Code a court that sentenced the accused (or a court to which the probation order is transferred under s. 733(1)) may modify the conditions, relieve compliance of a condition or decrease the duration of the probation order. The length of probation cannot be increased since this would infringe the s. 11(h) of the Charter. There is virtually no case law on the constitutionality of variations rendering the probation order more onerous, such as adding terms and conditions. Conditional sentences may be varied in a similar matter except the duration cannot be varied.

Where the court imposes a driving prohibition over 5 years, the National Parole Board may decrease the period of prohibition after 5 years where the court imposed prohibition is less than life or after 10 years where the court imposed prohibition was life.

Where the court imposes a fine and specifies a required time period to pay the fine, the accused may apply to the court for an extension of the period to pay a fine. However, courts will usually only grant the variation if the accused has made a reasonable attempt to pay the fine or has a reasonable excuse for failure to do so.

Purpose of Sentencing

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

• Denunciation
• Deterrence
• Separation of offenders
• Rehabilitation
• Reparation
• Promotion of responsibility

Sentencing Principles

There are a number of 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.

Aboriginal Offenders

Under s. 718.2(e) the court is required to consider all reasonable alternatives to imprisonment, with particular attention to Aboriginal offenders. This section has been interpreted narrowly, applying only to on-reserve Aboriginals adhereing to a traditional lifestle. This was change in R. v. Gladue where the Supreme Court of Canada held that it applied to Aboriginals living on and off reserve. The court found as a matter of judicial notice that the Aboriginals have a long-standing disadvantage in Canadian society and the effects are felt for generations.

Aboriginal heritage is not a "get out of jail free card." Rather it requires to court to place a higher emphasis on traditional Aboriginal sentencing principles such as restorative justice. Often community members and the victim will be involved in the process. However, where the crime is more serious in nature, Aboriginal heritage plays lesser role as courts will place a higher emphasis on protection of the public, denunciation and general deterrence. Moreover s. 718.2(e) is not a substantive power which allows a court to impose a sentence outside the legally acceptable range. For instance, where an offender faces a 4 year minimum sentence, the court cannot sentence below that.

Aggravating 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 (children, taxi drivers, late-night clerks, etc.).

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 committed 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.

Prior findings of guilt

The court is allowed to take into account prior findings of guilt when determining the appropriate sentence.^[1]

For some offences, a prior finding of guilt will create a higher minimum sentence. However, the court cannot rely on the higher minimum sentence unless the Crown notified the defendant prior to defendant's plea.^[1] Even if the defendant was not notified, or the Crown chooses not to file the notice with the court, the court can still rely on the prior finding of guilt as an aggravating factor.

Credit for pre-trial 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.^[3] There is no specific formula, but judges generally give a "2 for 1" credit for pre-trial custody.^[4]

Pre-trial custody can be used to reduce a minimum sentence.^[4]

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 beyond one day for every day served.^[5] The bill received Royal Assent on October 23, 2009.^[6] The new law came into effect on March 1, 2010, but the new law does not apply to accused persons taken into custody before that date.^[7]

The new rules are as follows:^[8]

1. Generally, the maximum credit a judge may give for pre-trial custody is one day for every day served.
2. A judge has discretion to increase the credit to 1.5 days for every day of pre-trial custody, provided the person was not detained due to prior convictions or because they were breaching their bail.

Sentencing options

Summary

Type of Sentence	Description
Absolute/Conditional Discharge	Available if accused is not subject to a minimum penalty and the offence is not one punishable with a maximum sentence of 14 years imprisonment or life imprisonment Sentence results in a finding of guilt rather than a conviction Absolute discharge purged after one year, and a conditional discharge after three years May not be recognized by the United States for entry purposes
Suspended Sentence	Available if accused is not subject to a minimum penalty Accused is placed on probation for up to three years Sentence may be revoked by sentencing court if accused fails to abide by terms of probation
Fine	Accused may be fined up to $2000 for summary offences or any amount for indictable offences Court must consider ability to pay Fine option programs available in certain jurisdictions (performing community service in lieu of paying fine) Range of civil remedies for default
Imprisonment for under two years	Accused eligible for conditional sentence if criteria are met Accused eligible for sentence abatement of 1 day for every 2 days served, provided the accused is of good behaviour and obeys the institution rules Sentence may be combined with either probation or a fine, but not both
Imprisonment for two years or more	Accused eligible for parole after serving one-third of the sentence imposed (one-sixth under some circumstances), unless court orders that parole may not be sought until the accused has served the lesser of one-half of the sentence imposed or 10 years Accused persons are eligible for statutory release after serving two-thirds of sentence imposed unless accused person is deemed an unacceptable risk

Absolute and Conditional Discharges

If it is in the best interests of the accused, and not contrary to the public interest, a judge may discharge an accused after a finding of guilt, which is not considered a conviction.^[9] A discharge is only possible if there is no minimum sentence for the offence, and the offence is not punishable by 14 years of imprisonment or a life sentence.

A discharge may be absolute or conditional. If conditional, the defendant will have to comply with terms under a probation order (described in more detail below).

The effect of a discharge is that it will not considered a criminal record. An absolute discharge is purged after one year. A conditional discharge is purged after three years.^[10]

While a discharge does not result in a criminal conviction, there is a finding of guilt. This finding can be used in civil proceedings and may result in refusal of entry into the United States which does not currently recognize discharges or pardons.

Probation and Suspended Sentences

Probation may be ordered in combination with other sentencing options, or if there is no minimum sentence, on its own as a suspended sentence. Probation cannot be ordered in combination with a term of imprisonment of more than two years, and it cannot be in combination of both a fine and imprisonment.^[11]

The maximum length of a probation order is 3 years.

A probation order will require the defendant to comply with a number of conditions. Some of the conditions are mandatory: "keep the peace and be of good behaviour", appear in court when required to do so, and notify the court and probation officer of any change of address or employment. There are also a number of optional terms, which include reporting conditions, non-consumption conditions, non-possession conditions, non-attendance conditions, non-association/communication conditions, and treatment conditions.

Community service can also be ordered as part of a probation officer, with a maximum of 240 hours, over a maximum period of 18 months.

Failure to comply with a probation order is a criminal offence. Committing an offence while bound by a probation order means the offender failed to comply with the order, due to the mandatory condition of "keep the peace and be of good behaviour".

Suspended Sentence

Where the court sentences the accused to a suspended sentence, the accused is placed on probation for a period of up to three years. During this time the accused must comply with these conditions. A suspended sentence is not considered a final sentence, since an accused who is convicted of breaching the conditions of the probation order may in addition to being sentenced for the offence of breach of probation, may also have the suspended sentence revoked. Once a suspended sentence is revoked, the court which originally sentenced the accused may re-sentence the accused. This has been held to not infringe double jeopardy since a suspended sentence is not a final order.

Fines

A fine can be ordered on its own or in addition to probation or imprisonment. It cannot be ordered in combination of both probation and imprisonment.^[12]

If the offence is a summary conviction offence (or a hybrid offence where the Crown elects to proceed summarily), the maximum fine is $5,000, unless otherwise stated in the statute.^[13]

Before a court imposes a find, it must inquire into the ability to pay the fine.

Failure to pay the fine by the time required in the order can result in the person being found in default. A number of remedies exist, including imprisonment. In the past a court that imposed a fine would also impose a hypothetical sentence in the event of default. This led to gross inconsistencies so in 1995 Parliament created a fixed formula for determining the number of days of imprisonment. This formula is determined by taking the unpaid amount and any costs associated with incarcerating the accused as the numerator and eight times the provincial minimum wage as the denominator. For example, an unpaid fine of $640 in a jurisdiction with a minimum wage of $8 hourly would be approximately 10 days.

In addition, unless waived by the court, the defendant is required to pay a victim fine surcharge in addition to whatever else the judge imposes as sentence. The surcharge is 15% of the fine imposed or, if no fine is imposed, $100 for an indictable offence and $50 for an offence punishable on summary conviction. This amount may be increased or decreased depending on the discretion of the court.

Restitution

Restitution can be ordered by the court for any property damage, lost or stolen property, or any physical or psychological injuries suffered by a victim.^[14]

Conditional Sentence

Main article: Conditional sentence (Canada)

A conditional sentence is when a court orders the defendant to serve their sentence in the community. It is not allowed when there is a minimum sentence of imprisonment or when it is replacing a term of imprisonment of two years or more.

Imprisonment

Unless otherwise stated by statute, if the offence is a summary conviction offence (or a hybrid offence where the Crown elects to proceed summarily), the maximum sentence of imprisonment is 6 months.^[13]

Again, unless otherwise stated by statute, if the offence is an indictable offence (or a hybrid offence where the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years.^[15]

Generally, a judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence a defendant is serving, or any other sentence arising out of the same transaction; the exception is for a sentence of life imprisonment.

If the total sentence is two years or more or one of life imprisonment, the defendant will serve their sentence in a federal penitentiary. If the total sentence is less than two years, the defendant will serve their sentence in a provincial jail.

A sentencing judge also has the power to delay the time before a defendant is allowed to apply for parole.^[16] The maximum parole ineligibility period is half of the sentence or ten years, whichever comes first, unless the defendant is sentenced to life imprisonment.

If a defendant is sentenced to life imprisonment, then the following parole ineligibility periods apply (which includes youths sentenced as an adult):^[17]

Offence/circumstances	Parole ineligibility period
High treason, first-degree murder (with no additional circumstances) or second degree murder by an offender previously convicted of murder	25 years
Second degree murder (with no additional circumstances)	10–25 years
First degree murder (16 or 17 years old at time of the offence)	10 years
Second degree murder (16 or 17 years old at time of the offence)	7 years
First or second degree murder (14 or 15 years old at time of the offence)	5–7 years

When a jury convicts a person of second-degree murder, they can recommend to the judge a parole ineligibility period, but the judge is not bound by the jury's recommendation.

In certain situations, a person convicted of murder may apply under the faint hope clause to have their parole ineligibility period reduced.

Parole and Remission

An accused person serving a sentence of less than two years is eligible for remission against the sentence at a maximum rate of 1 day for every 2 days served, provided the accused is of good behaviour and obeys the rules of the institution. Remission credits abate the actual sentence and effectively most accused serve two-thirds of the sentence imposed (e.g. an accused sentenced to 12 months imprisonment will be deemed to have completed the full term after serving 8 months).

An accused person serving a determinate sentence, other than life imprisonment, is eligible for statutory release after serving two-thirds of the sentence. Unlike remission, the sentence is not abated; rather the accused person will be released on parole and will be subject to conditions for the last one-third of the sentence. The National Parole Board may refuse statutory release for certain accused persons or for certain offences, and as such, many accused persons end up serving their entire sentence in custody and are only released on their warrant expiry date.

Any accused person sentenced to a term of imprisonment greater than six months may apply for parole after serving one-third of the sentence. Where an offender is sentenced to a term of 2 years or more, the offence is non-violent, and the offence is included in the list of eligible offences under the Corrections and Conditional Release Act, the accused person may apply for parole after serving one-sixth of the sentence or six months, whichever is greater.

An accused person granted parole is still legally subject to a warrant of committal and is deemed to be "in custody." This will be the case until the expiry of the term of imprisonment; if the accused is sentenced to a life sentence or an indeterminate sentence, the accused will be subject to the jurisdiction of the National Parole Board for the rest of their life.

Type of Remission	Two Years or More	Less Than Two Years
Remission	Ineligible	Two weeks remission for every month served if the accused is of good behaviour and obeys the rules of the institution
Parole	One-third of sentence (greater of one-sixth or six months if s. 125 of the Corrections and Conditional Release Act applies; one-half in some cases)	One-third of sentence (temporary absence available after serving one-sixth of sentence)

Long term offenders

If a person is convicted for their third or more offence found in section 752 of the Criminal Code, the Crown can apply for the person to be declared a long term offender. The Crown can only make such applications with the personal consent of the Attorney General.

A long term offender is a person where there is a substantial risk the person will re-offend and be a danger to the community, but there is a reasonable possibility of eventually controlling the risk in the community.

When sentenced as a long term offender, the defendant must first serve their prison sentence, and then be placed on a long-term supervision order in the community for a maximum of 10 years.

Dangerous offenders

Main article: Dangerous offender#Canada

If a person is convicted for their third or more offence found in section 752 of the Criminal Code, the Crown can apply for the person to be declared a dangerous offender. The Crown can only make such applications with the personal consent of the Attorney General.

A dangerous offender is a person where there is a substantial risk the person will re-offend and be a danger to the community, and there is no reasonable possibility of eventually controlling the risk in the community.

When sentenced as a dangerous offender, the defendant is placed on an indefinite sentence, where the accused may apply for parole after 7 years and every 2 years thereafter. Even if a dangerous offender is granted parole, the offender is subject to indefinite supervision of the National Parole Board.

Ancillary orders

A number of additional orders may be made by a judge at the time of sentencing - either optional or mandatory. These include weapon prohibitions,^[18] driving prohibitions,^[19] forfeiture of crime-related properly,^[20][21] DNA orders,^[22] and sex offender registry orders.^[23]

Youth

Main article: Youth Criminal Justice Act

Youth are sentenced under a different regime found in the Youth Criminal Justice Act (YCJA). The YCJA also dictates how and when a court can order a youth sentenced under the adult regime.

Constitutional issues

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 length of the sentence.

See also

• Criminal law of Canada

References

1. ^ ^{a b c d e} Criminal Code of Canada: Sentencing - Procedure and Evidence
2. ^ Criminal Code of Canada: Procedure in Jury Trials and General Provisions - Trial
3. ^ Criminal Code of Canada: Sentencing - Punishment Generally
4. ^ ^{a b} R. v. Wust, 2000 SCC 18
5. ^ "No more two-for-one sentencing for pre-trial custody after law passes". The Canadian Press. 23 October 2009. http://www.google.com/hostednews/canadianpress/article/ALeqM5jvIViyIxYWdb5zO9lZSzNbRKrF4A. Retrieved 24 October 2009. 
6. ^ Legislation Restricting Credit for Time Served Receives Royal Assent - Department of Justice (Canada)
7. ^ Bill C-25 - Legislative Info
8. ^ Bill C-25: Truth in Sentencing Act
9. ^ Criminal Code of Canada: Sentencing - Absolute and Conditional Discharges
10. ^ Criminal Records Act: Custody of Records
11. ^ Criminal Code of Canada: Sentencing - Probation
12. ^ Criminal Code of Canada: Sentencing - Fines and Forefeiture
13. ^ ^{a b} Criminal Code of Canada: Summary Convictions - Punishment
14. ^ Criminal Code of Canada: Sentencing - Restitution
15. ^ Criminal Code of Canada: Sentencing - Imprisonment
16. ^ Criminal Code of Canada: Sentencing - Eligibility for Parole
17. ^ Criminal Code of Canada: Sentencing - Imprisonment for Life
18. ^ Criminal Code of Canada: Firearms and other Weapons - Prohibition Orders
19. ^ Criminal Code of Canada: Offences against the Person and Reputation - Motor Vehicles, Vessels and Aircraft
20. ^ Criminal Code of Canada: Proceeds of Crime - Forefeiture of Proceeds of Crime
21. ^ Criminal Code of Canada: Special Procedure and Powers - Forfeiture of Offence-related Property
22. ^ Criminal Code of Canada: Special Procedure and Powers - Forensic DNA Analysis
23. ^ Criminal Code of Canada: Special Procedure and Powers - Sex Offender Information