- 1 WHAT TYPES OF SENTENCING OPTIONS ARE AVAILABLE?
- 2 HOW DOES A CONVICTION AFFECT SENTENCE LENGTH?
- 3 WHAT HAPPENS WHEN THERE ARE MULTIPLE SENTENCES?
- 4 WHAT FACTORS HAVE AN EFFECT ON THE LENGTH OF A SENTENCE?
- 5 DO JUDGES CONSIDER VICTIM IMPACT STATEMENTS WHEN CHOOSING A SENTENCE?
- 6 MANDATORY MINIMUM PENALTIES (MMPS)
- 7 PLEA BARGAINING
- 8 SENTENCING YOUNG OFFENDERS
- 9 CONCLUSION
This booklet has been created to provide victims of crime a comprehensive information source on sentencing in Canada. It will outline the different things that affect sentences, what types of sentencing options are used and how multiple crimes are processed by the courts. The judge’s consideration of Victim Impact Statements at sentencing will be discussed briefly, as well as detailed information about mandatory minimum penalties and plea bargains.
WHAT TYPES OF SENTENCING OPTIONS ARE AVAILABLE?
In Canada, a trial judge can consider various sentencing options to impose on the offender. Below is a list of the types of sentencing options a judge can choose from, starting with the least restrictive:
ABSOLUTE OR CONDITIONAL DISCHARGE
A discharge is unique sentences because when a person is given this sentence, they must admit to essential elements of the crime and are therefore found guilty, but are not convicted. Discharges are not usually offered to repeat offenders, and cannot be given to individuals charged with offenses that carry mandatory minimum penalties (these penalties will be explained later), or sentences with a maximum penalty of 14 years or life in prison.
An absolute discharge means that you immediately have no criminal record, and the RCMP will remove the person from their records after one year. A conditional discharge means that the person is on probation with conditions (similar to those described in the Condition Sentencing Section, but may vary). If they obey the conditions until the end of the probation, then the law treats them as if they had not been convicted of a crime (their criminal history is removed from their record after three years). If they don’t obey the conditions or don’t finish the probation, they can be charged with the crime of breaching probation, and may be sentenced more punitively.
In this case, the offender is required to pay a specific amount of money as punishment for the crime. Fines are most often imposed after a summary conviction has been made. The size of the fine depends on its proportionality to the seriousness of the offense, as well as the offender’s financial capabilities. It is up to the judge to specify the amount of the fine and the date for which it is required to be paid by. If the court does not receive payment by the specified date, the offender can face a prison sentence.
VICTIM FINE SURCHARGE
When an offender is given a sentence, the judge imposes a mandatory surcharge that the offender must pay, and is used to fund provincial programs to assist victims of crime. The surcharge is 30 per cent of any fine imposed on the offender. Where no fine is imposed, the surcharge is $100 for offenses punishable by summary conviction, and $200 for offenses punishable by indictment.
This type of sentence applies only to offenses for which sentences are less than two years. Conditional sentences are served in the community as opposed to a correctional facility, with the offender being under strict supervision from his or her parole officer. It is important to note that public safety is the most important concern of this kind of sentence. Before this sentence can be imposed, the trial judge must be satisfied that the offender is a good match for community supervision. When serving a conditional sentence, an offender’s prison term is considered “suspended” and is on hold so long as the individual conducts him or herself as a law-abiding citizen, while behaving according to the court’s probation conditions.
Mandatory conditions include:
- Keeping the peace and being of good behaviour
- Regularly reporting to a parole officer
- Appearing before the court when summoned
- The court may also impose other conditions that are related specifically to the circumstances of the offender and their crime. Some examples include:
- abstaining from using drugs or alcohol
- abstaining from owning, possessing or carrying a weapon
- providing for the support or care of dependents
- performing up to 240 hours of community service over a period not exceeding
- anything else the judge feels is an appropriate condition
Another less frequently used option is intermittent sentencing for minor summary offenses. This option is only available for sentences that are three months or less. Intermittent sentencing means that the time is served in a prison only on days ordered by the court which are non-consecutive, and can allow an individual to continue working at their job. For example, a judge may have the offender serve time in a provincial facility from Friday nights until Monday mornings each week. Outside of this time, the offender remains under probation, which is similar to a conditional sentence. This type of sentencing is used to ensure that offenders are able to maintain things like employment and community ties that will help them to fully reintegrate into society when their sentence is completed. In the event that conditions are breached during the time when the offender is in the community, the offender is usually made to serve all of the rest of their sentence in a prison, unless otherwise specified by the court.
Imprisonment is intended to separate the offender from the public, in order to interrupt any further crimes from being committed by that person. Prison sentences are to be used only when all other sentencing options have been deemed inadequate to protect society or to hold the offender meaningfully accountable for their crime. Offenders sentenced to imprisonment for less than two years in length can expect to serve their time in a provincial prison. Those who received sentences of two or more years will be held in a federal penitentiary, which can have minimum, medium or maximum security levels.
LONG TERM OFFENDER DESIGNATION
If an offender is deemed to be a long term offender (shows a substantial risk to reoffend in a way that is likely to cause death or injury to other people or inflict severe psychological injury on other people; or, by conduct in any sexual matter has shown a likelihood of causing injury or pain to other people in the future through similar offenses), they will receive an additional period of supervision in addition to their sentence. This means that if a person is sentenced to 5 years of imprisonment, after their warrant expiry date (when their sentence is over), they will further be supervised by a parole officer in the community for up to 10 years.
DANGEROUS OFFENDER DESIGNATION
A person who commits a serious personal injury offense, and is eligible for ten or more years imprisonment, as defined in Section 752 of the Criminal Code (such as murder or sexual assault), and where the offense involved violence or attempted violence which can or will inflict mental or physical injury on another may be eligible for a dangerous offender designation. The offense must also be subject to a sentence of ten or more years of imprisonment. If a person receives such a designation, they may be imprisoned for an indefinite amount of time (potentially for as long as the offender lives, if the parole board does not feel the offender could be reintegrated into society without him or her committing further serious personal injury offenses).
HOW DOES A CONVICTION AFFECT SENTENCE LENGTH?
There are three different ways that an offense can be prosecuted in the Canadian court system. Depending on the type and seriousness of the crime, the offense may be prosecuted in one of the following ways, which will impact on the type and severity of their sentence if the person is convicted.
Summary offenses carry the shortest and least restrictive punishments, and tend to be processed more quickly than the other types of offenses. Summary offenses carry a maximum prison term of six months and/or up to a $5000 fine. There are a very few instances where a prison term can be longer; for example, a summary charge of sexual assault can carry a maximum penalty of up to 18 months (this offense carries a longer maximum sentence because it is actually a hybrid offense (described shortly) but when prosecuted as a summarily, an exception is made because of the offense’s serious nature). If an individual is charged with a summary offense, he or she will appear before a judge in a provincial level court, and does not have the right to choose to have their case heard by a jury. It is important to note that the accused must be formally charged within six months of the crime to be prosecuted summarily. If the individual receives a summary conviction that includes a prison term, this time will be served within a provincial prison.
Indictable offenses are accompanied by the most serious and restrictive punishments. There are three different levels of indictable offenses, divided by seriousness. First, offenses such as those listed in Section 553 of the Criminal Code carry a maximum penalty of two years, and include theft under $5000 and failure to comply with a probation order. Other offenses have a maximum penalty of up to 14 years, including theft over $5000, robbery and sexual assault with a weapon. The most serious types of indictable offenses carry a maximum sentence of life in prison and include first and second degree murder, manslaughter, and kidnapping. There is no limitation period to charge or prosecute a person with an indictable offense. Those convicted of indictable offenses and sentenced to two or more years will serve their sentence in a federal penitentiary.
In some situations, offenses are considered hybrids of summary and indictable offenses, which are also known as dual-procedure offenses. For these crimes, it is up to the Crown Attorney to decide whether or not the court should treat the charge as a summary or an indictable offense. To decide whether to proceed summarily or by indictment, the Crown will consider such things as:
- the seriousness of the allegations (for example, “sexual assault” can include either touching or full intercourse)
- the accused’s prior criminal record
- the notoriety of the case in the community
- the availability of court resources
- whether the offense is sworn outside the limitation period for a summary conviction
- the complexity of the case
- any other aggravating or mitigating circumstances
Once the Crown elects how the offense will be treated, the rules for one or the other are applied accordingly.
WHAT HAPPENS WHEN THERE ARE MULTIPLE SENTENCES?
There are two ways that a judge can require an individual to complete multiple sentences: consecutively or concurrently.
Consecutive sentences are those which are served one after another. For example, if an offender receives two separate sentences for two offenses of three years each, this person would serve six years total. According to Section 718.2(c) of the Criminal Code, the combined prison time cannot be overly severe. This explains why this sentencing option is not often used for multiple serious offenses.
Alternatively, a judge may impose a concurrent sentence for multiple offenses that are committed together or within a short period of time from one another. In this situation the time is served as an aggregate whole. For example, suppose an offender is convicted of two offenses, one of which he receives a two year sentence, and the other he receives a three year sentence. If the sentences are imposed concurrently, the total time is equal to the longest sentence; three years in this case.
WHAT FACTORS HAVE AN EFFECT ON THE LENGTH OF A SENTENCE?
During sentencing, factors about the offender’s behaviour before the crime was committed, or at the time of the offense, are used to assist in deciding the sentence of that person. These are known as aggravating and mitigating circumstances.
These circumstances are pieces of evidence, aspects of the offense, or characteristics of the offender presented during a trial that can increase the level of accountability of an offender’s actions; they are used to justify a more severe punishment. There are some general factors that affect many offenses and some that are offense specific. Examples of aggravating circumstances for most offenses include:
- whether the offender has been previously convicted of an offense
- premeditation or planning during the commission of the offense
- motivation by prejudice or hate towards a victim’s race, disability or sexual orientation
Other aggravating circumstances apply specifically to different types of offenses. For example, for violent offenses, where the victim is the offender’s spouse or child, he or she will receive a harsher sentence. Another example would be having a high blood alcohol level for impaired driving charges.
The most important aggravating factor that is considered by the court is the offender’s criminal history. If the offender’s criminal record shows a pattern of recidivism, the judge will be more likely to increase the harshness of the offender`s sentence. The seriousness of the offense is also not taken lightly. Seriousness is best illustrated by the different levels of assault in Canada. In R. v. Tobin, the judge sentenced the offender to one year in prison for common assault. In R. v. Roach, the charge of aggravated assault brought forth a seven year sentence. This was the case because the judge considered such aggravating circumstances as:
- an extensive criminal record including violence
- prolonged and vicious injuries inflicted on the victim
- permanent scarring that resulted from the act
- the psychological impact that the crime had on the victim
There are also circumstances which the judge must consider that may reduce the offender’s level of responsibility regarding an offense. These factors do not exonerate the individual, but may contribute to a lighter sentence. Examples of mitigating circumstances include:
- the absence of a criminal record
- an offender’s young age
- feelings of genuine remorse for serious crimes
- exhibition of good character prior to the offense
- presenting the court with a guilty plea
DO JUDGES CONSIDER VICTIM IMPACT STATEMENTS WHEN CHOOSING A SENTENCE?
Victim Impact Statements are documents prepared by victims of a crime to express the extent to which the offense has had an effect on their lives. Once the statement is written, it is given to the Crown Attorney who will pass it on to the judge. The offender will also receive a copy; however personal information (addresses/ phone number etc.) will not be given to the offender. The statement can be read during sentencing either by the victim, by the Crown Attorney, or by the Judge. These statements are presented to the court during a sentencing hearing. It is mandatory for a judge to consider the victim’s statement when deciding upon a potential sentence. Judges consider these statements to be useful and relevant for sentence-related decisions and may increase or decrease the severity of the punishment based on what the victim has stated.
A person from a local victim services agency or the Victim-Witness Assistance Program in the court house will often be available to help victims complete this statement and give you more information about it if you are unsure of what you can and cannot say. For more information on the different ways that victims can participate in the justice system, please refer to our guide titled A Victim’s Guide to Participating in the Criminal Justice Process.
MANDATORY MINIMUM PENALTIES (MMPS)
These are sentences that are fixed, meaning that a judge is not permitted to use his or her discretion to give a more lenient sentence, no matter what the circumstances of the case are. They can however, give a harsher sentence. Mandatory minimum penalties are applied to different types of offenses and for different reasons.
PENALTIES FOR OFFENSE TYPE
Some mandatory minimum penalties are based on the type of offense that is committed. The most serious types of offenses hold the most severe minimum penalties, such as a mandatory life imprisonment with no parole for 25 years for first degree murder. Some sexual offenses also carry mandatory minimum penalties, particularly offenses against children. Other penalties surround repeat offenses as well, such as where impaired drivers face a mandatory 14 days and 90 days in jail for their second and third conviction, respectfully.
WHY USE MMP’S?
Mandatory minimum penalties are used to ensure that some crimes receive a minimum punishment that is proportionate to the seriousness of that crime, and that judges cannot use too much of their discretion to determine a sentence in such cases. MMPs were established as a response to the public’s and the victim’s concern about proportionate sentences, and were intended to provide more consistency in sentencing. There are many conflicting viewpoints and research studies on the effectiveness of MMPs; for a brief discussion on this issue, please visit Parliamentary Information and Research Service: Mandatory Minimum Sentences.
WHAT IS A PLEA BARGAIN?
This is a process in which the Crown and defense counsel negotiate the terms in which an offender will be charged or sentenced. Plea bargaining can be used for different purposes as required for any given situation. Some of the most common situations where a plea bargain may happen include, but are not limited to:
- Charge bargaining
– changing the current charge to a less severe charge
– the withdrawal of other pending charges
- Procedural bargaining
– the Crown will prosecute via summary offense instead of indictment
- Sentence bargaining
– making a recommendation for a specific sentence
– the agreement not to seek a more severe sentence
– agreements on conditions to be imposed with a conditional sentence
WHY ARE PLEA BARGAINS MADE?
The primary reason for the use of plea bargains in the court process relates to cost and efficiency. If an offender intends to plead guilty, meeting with the Crown prosecutor to agree on viable conditions and sentence recommendations can save time and resources that would be otherwise used toward a trial. In other situations, the Crown may not feel that they can convict the offender on a serious charge (for example, due to lack of substantial evidence). In these cases, the Crown may offer to charge the offender on another, less serious offense in exchange for a guilty plea. By doing this, the Crown can ensure a conviction.
DO VICTIMS GET A SAY IN WHETHER A PLEA BARGAIN IS OFFERED?
It is not required for the victim to be contacted and given specific information related to any plea bargaining. Some Crown’s are better at involving victims in this process then others, but ultimately it is up to their discretion whether to take into account the victim’s concerns before making a plea bargain.
HOW WILL A PLEA BARGAIN AFFECT AN OFFENDER’S SENTENCE?
Because the result of a plea bargain often leads to the offender either being charged with a lesser number of offenses, a less serious offense, or the Crown Attorney agreeing to seek a less punitive punishment in return for a conviction, the offender will often receive a shorter or less restrictive sentence then they would have received had they been convicted of the offense they were originally charged with prior to the plea bargain. It is important remember however, that when the Crown does make a plea bargain, it is often to ensure a conviction; if they had not bargained and had the offender not plead guilty, there is no guarantee that they would have been convicted at trial.
SENTENCING YOUNG OFFENDERS
When it comes to sentencing principles, guidelines for youth offenders differ in a number of ways from those for adults. Under the Youth Criminal Justice Act, accountability for the offense is adjusted appropriately for the reduced maturity of youth. Also, reparation of harm inflicted upon the victim and increased respect for social values are given more emphasis. However, the most important consideration for sentencing youth is that the consequences of the offense must be meaningful in order to constitute a deterrent effect. Other principles for youth that illustrate a difference from adult sentencing include lower sentence severity for the same adult offense and that the penalty must be proportionate to the youth’s responsibility. While the sentence is proportionate, at the same time it will be the least punitive option most likely to facilitate rehabilitation and reintegration into the community.
Extrajudicial measures are alternatives to formal custody (imprisonment), and are exclusive to youth sentencing. Police or the Crown may impose extrajudicial measures on offenders who commit minor and non-violent offenses in order to divert them away from the justice system, while still providing youth with meaningful consequences to their actions and preventing young offenders from further criminal behaviour. An example of an extra judicial measure might be that the youth is required to repair a vandalized piece of property, or complete a certain number of hours volunteering in their community. Extrajudicial measures must always be considered for youth before a traditional sentence is imposed. Police must keep records of all extrajudicial measures used to deal with young offenders.
PRISON SENTENCES FOR YOUTH
Incarceration is only available for youth in certain circumstances and takes the form of intensive rehabilitative custody, with a supervision order after the fact. This type of sentence is usually only imposed for serious violent offenses, whereas other offenses are normally given a combination of community supervision with certain conditions that the young person must complete (such as volunteer work or attending a rehabilitation program). Youth correctional officials determine the offender’s security level, while remaining mindful of the least restrictive way possible for the youth’s rehabilitative needs. Youth who are incarcerated are to serve their sentence in a youth facility separate from adult offenders, however if the offender reaches 20 years of age, he or she may be transferred to an adult facility to finish the sentence.
If the offender is under 18 they may serve their sentence in a youth facility, but may be transferred to an adult prison or penitentiary after they turn 18 (when the offender turns 20, they must be transferred, unless the judge decides it would not be in their best interest and it would not jeopardize the safety of others).
SENTENCING YOUTH AS ADULTS
In some cases, a youth can be formally sentenced as any adult offender would be for the same offense. This is restricted to very specific circumstances, and applies to youth convicted of serious violent crimes such as murder, attempted murder and aggravated sexual assault. Adult sentences are only available to youth who are 14 years of age or older; however provinces may decide to set the minimum age to 15 or 16 years. If a youth is convicted and sentenced as an adult, the media may publish their name, and their criminal record becomes an adult one (it is not sealed after the young person turns 18). It is important to note that if the youth can be held meaningfully accountable without receiving an adult sentence, an adult sentence cannot be considered, even if the offender has committed one of the offenses mentioned above.
This guide is meant to educate victims about sentencing and related issues. Knowing about the process and the different sentencing outcomes can greatly reduce some of the uncertainty that victims may face while trying to navigate the Criminal Justice System. If you still have questions on this topic, contact your local victim services agency, the Victim/Witness Assistance Program in your local court house, or even the Crown Attorney charged with prosecuting your case for more information. You can also contact our office at 1-888-606-0000 and we can answer any other general questions you may have about sentencing.