Criminal Sentencing

A sentencing hearing occurs after you have been found guilty following a trial, or you have plead guilty. Typically, in the case of a plea, sentencing will occur directly after you have plead guilty in court. If you have agreed to a plea deal, both your lawyer and the Crown will likely make a joint submission on the sentence that has been agreed, and a judge will have to approve it. In the case of being found guilty after a trial, the timing of your sentencing depends on the complexity of your case. A judge may choose to hear sentencing submissions immediately after handing down their verdict, or they may arrange a later date for the sentencing hearing.

The decision of a sentencing judge is the result of a complex calculation that weighs a variety of principles and factors. The principles that a sentencing judge will consider are outlined in sections 718, 718.1 and 718.2 of the Criminal Code. Section 718 outlines the purpose of sentencing, which is to protect society and encourage respect for the rule of law by imposing sanctions that reflect the following principles:

1. to denounce unlawful conduct;
2. to deter the offender and other persons from committing offences;
3. to separate offenders from society, where necessary;
4. to assist in rehabilitating offenders;
5. to provide reparations for harm done to victims or to the community; and
6. to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community

To summarize the above, the penalty that a sentencing judge arrives at must sufficiently accomplish the goals of denunciation, deterrence, the protection of society, and the rehabilitation of the offender, while also offering some acknowledgement or help to repair the harm done to victims and the community.

A judge’s decision on sentence is further constrained by s. 718.1 of the Criminal Code, which states that the fundamental principle a judge must consider is that the penalty must be proportionate to the gravity of the offence and the degree of responsibility of the offender. What this means is that whatever penalty the judge believes to accord with the principles outlined above (denunciation, deterrence, etc.), it must also suit the severity of the offence committed and the amount of responsibility that is attributed to the offender.

To help the judge in arriving at their sentencing decision, s. 718.2 of the Criminal Code groups certain factual details into categories known as aggravating and mitigating factors. The Code provides examples of aggravating factors, but leaves the assessment of mitigating factors up to the judge. If the aggravating factors outlined in the Code are present in your case, it will push the penalty in a more severe direction. These factors include:

1. evidence that the offence was motivated by bias, prejudice or hate based on race, gender, religion, sexual orientation, or any other similar factor
2. evidence that the offender abused the offender’s spouse or common-law partner
3. evidence that the offender abused a person under the age of 18
4. evidence that the offender abused a position of trust or authority in relation to the victim
5. evidence that the offence had a significant impact on the victim
6. evidence that the offence was committed for the benefit of a criminal organization
7. evidence that the offence was a terrorism offence
8. evidence that the offence was committed when the offender was under a conditional sentence or released on parole

Note that the above list does not exhaust the number of factors that may increase your sentence. A judge retains the power to treat whatever factual details they want as either aggravating or mitigating. Examples of mitigating factors include: evidence that the offender is remorseful and regrets what they did, the age or mental capacity of the offender, evidence of co-operation with authorities, amongst others. If these factors are present in your case, they may serve to lessen the severity of the penalty you receive.

At the sentencing stage, the rules of evidence are relaxed, as the sentencing judge wants to know as much information as possible about the circumstances of the accused and the offence for which they have been convicted. Since judges consider a much broader range of evidence at sentencing, how they will interpret various types of evidence and its effect on the outcome can be very difficult to predict.

The evidence that is commonly heard at a sentencing hearing includes the following:

• Evidence that the offender has received counselling or has entered a treatment program
• Pre-Sentence Reports prepared by a parole officer or other official (produced after interviewing the offender)
• Evidence outlining the offender’s criminal record
• Evidence of the offender’s current employment and employment history
• Evidence of the offender’s intention to attend school
• Evidence that the offender has dependents (especially young children)

Note that the above list only offers some examples of the type of evidence that can be brought at a sentencing hearing. Due to the relaxed rules of evidence at the sentencing stage, there are few limits on the type of evidence that can be brought. If you believe that a piece of evidence will help to inform the judge of your circumstances as an offender, and the evidence is credible, it will likely be admissible at sentencing.

If you are an immigrant to Canada and you are not yet a citizen, it is imperative that you obtain the services of a criminal defence lawyer who is aware of the consequences a penalty will have on your immigration status. If a certain penalty will result in your deportation from Canada, that is a fact that the sentencing judge must be made aware of, to ensure that the sentence they hand down does not conflict with s. 12 of the Canadian Charter of Rights and Freedoms, which includes the right to not be subjected to any cruel or unusual punishment. Sometimes, lawyers who specialize only in criminal law will not consider the immigration ramifications of their client’s sentence, and the client receives a sentence that forces them to leave Canada. DUVADIE Law practices both criminal and immigration law, and has considerable expertise regarding how the two fields interact. We will be sure that the sentencing judge is aware of the immigration consequences that will result from any penalty you receive.

If you have been charged or convicted of an offence, please contact DUVADIE Law at (613) 422-1155 or Toll-Free 1 (855) 422-1155 as soon as possible so that we can begin working on your behalf.

Page last updated Sep 10, 2018 @ 22:11