Sentencing CLN4U

Sentencing From Section of the Criminal Code From Section of the Criminal Code 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… 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…

Sentencing to denounce unlawful conduct; to denounce unlawful conduct; to deter the offender and other persons from committing offences; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community

Activity What would be the sentencing objective(s) in the following scenarios? What would be the sentencing objective(s) in the following scenarios? An offender is charged with his/her second impaired driving offence An offender is charged with his/her second impaired driving offence A first time offender with an alcohol abuse problem is charged with assault causing bodily harm A first time offender with an alcohol abuse problem is charged with assault causing bodily harm An offender is charged with robbery with a weapon An offender is charged with robbery with a weapon An offender is charged with importing narcotics into Canada An offender is charged with importing narcotics into Canada A father ends the suffering of his severely disabled child and is convicted of second-degree murder A father ends the suffering of his severely disabled child and is convicted of second-degree murder

Sentencing Options Incarceration Incarceration Probation Probation Discharge Discharge Fines Fines Restitution Restitution Conditional Sentencing Conditional Sentencing

Incarceration If sentence > 2 years: Federal penitentiary If sentence > 2 years: Federal penitentiary If maximum penalty < 2 years: Provincial institution If maximum penalty < 2 years: Provincial institution For less serious offences (less than 90 days), the judge may impose an intermittent sentence For less serious offences (less than 90 days), the judge may impose an intermittent sentence Criminal Code outlines maximum (and sometimes minimum) sentences Criminal Code outlines maximum (and sometimes minimum) sentences Exceptions can be made for a person designated a dangerous offender Exceptions can be made for a person designated a dangerous offender Caused serious personal injury Caused serious personal injury Pose a continued threat to society Pose a continued threat to society Dangerous offenders are subject to an indeterminate sentence (no max) Dangerous offenders are subject to an indeterminate sentence (no max) Review for parole after 7 years, and every 2 years thereafter Review for parole after 7 years, and every 2 years thereafter

Probation no incarceration, but must meet certain conditions: no incarceration, but must meet certain conditions: keeping the peace keeping the peace good behaviour good behaviour making court appearances making court appearances notifying the court of any change in address notifying the court of any change in address Judge may also impose other conditions: Judge may also impose other conditions: Reporting to probation officer Reporting to probation officer Remaining within the jurisdiction Remaining within the jurisdiction Abstaining from alcohol/drugs Abstaining from alcohol/drugs Community service (up to 240 hours over 18 months) Community service (up to 240 hours over 18 months)

Discharge no conviction is recorded no conviction is recorded used if in best interests of offender and public used if in best interests of offender and public not used if: not used if: mandatory minimum mandatory minimum offence is punishable by 14 years – life offence is punishable by 14 years – life offender must have plead guilty or been found guilty offender must have plead guilty or been found guilty Absolute Discharge: Absolute Discharge: No criminal record No criminal record Conditional Discharge: Conditional Discharge: Must meet conditions under a probation order Must meet conditions under a probation order Breach of conditions may revoke discharge and result in a new sentence Breach of conditions may revoke discharge and result in a new sentence

Restitution Compensate victim for harm done Compensate victim for harm done i.e. replace property, pay for loss of income, moving expenses i.e. replace property, pay for loss of income, moving expenses

Fines sum of money paid to court sum of money paid to court cannot be used as sole sentencing option for mandatory minimum offences cannot be used as sole sentencing option for mandatory minimum offences court can impose a prison term is offender fails to make payment court can impose a prison term is offender fails to make payment maximum fine for summary conviction is $2,000 maximum fine for summary conviction is $2,000

Conditional Sentencing Term if imprisonment is impose, but sentence is served in the community Term if imprisonment is impose, but sentence is served in the community Conditions attached Conditions attached Key case: R. v. Proulx Key case: R. v. Proulx Dangerous driving causing death and dangerous driving causing bodily harm Dangerous driving causing death and dangerous driving causing bodily harm Conditional sentence not given – objectives of denunciation and deterrence Conditional sentence not given – objectives of denunciation and deterrence Manitoba Court of Appeal substitutes conditional sentence Manitoba Court of Appeal substitutes conditional sentence Supreme Court ruled in favour of original trial judge Supreme Court ruled in favour of original trial judge 3 part test: 3 part test: no mandatory minimum no mandatory minimum prison term < 2 years prison term < 2 years offender not a danger to community offender not a danger to community

Sentencing Considerations No “cruel and unusual” punishment No “cruel and unusual” punishment Aggravating and Mitigating factors Aggravating and Mitigating factors Parity and Totality Parity and Totality Restraint Restraint

Cruel & Unusual Punishment s. 12 of the Charter: “Everyone has the right not to be subject to cruel and unusual punishment.” s. 12 of the Charter: “Everyone has the right not to be subject to cruel and unusual punishment.” s of the Criminal Code: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” s of the Criminal Code: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Proportionality may determine whether the sentence is “cruel & unusual” Proportionality may determine whether the sentence is “cruel & unusual”

Aggravating Factors (from s of the Criminal Code): (from s of the Criminal Code): evidence that shows the crime was motivated by prejudice or hate evidence that shows the crime was motivated by prejudice or hate evidence the offender engaged in spousal or child abuse evidence the offender engaged in spousal or child abuse evidence of abuse of trust in relation to the victim evidence of abuse of trust in relation to the victim evidence that the offence was committed for the benefit of a criminal organization evidence that the offence was committed for the benefit of a criminal organization evidence that the offence was an act of terrorism evidence that the offence was an act of terrorism

Mitigating Factors first time offence first time offence remorse remorse good character good character positive reputation in the community positive reputation in the community good employment record good employment record engagement in a rehabilitation program engagement in a rehabilitation program

Parity “A sentence should be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances.” (s of the Criminal Code) “A sentence should be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances.” (s of the Criminal Code)

Totality “Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” (s of the Criminal Code) “Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” (s of the Criminal Code)

Restraint s of the Criminal Code: “An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.” s of the Criminal Code: “An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”

The Role of the Victim As we’ve seen, under Retributive Justice (upon which our system has historically been based), the role of the victim is minimized As we’ve seen, under Retributive Justice (upon which our system has historically been based), the role of the victim is minimized Crime is seen as a conflict between the offender and society Crime is seen as a conflict between the offender and society As more Restorative Justice principles enter into our system, victims have become more involved in the process, particularly during sentencing As more Restorative Justice principles enter into our system, victims have become more involved in the process, particularly during sentencing

The Role of the Victim In 1999 the Criminal Code was amended to include the right of a victim to prepare and read a victim impact statement in court In 1999 the Criminal Code was amended to include the right of a victim to prepare and read a victim impact statement in court Also requires offenders to pay fines (victim surcharge) in addition to their sentence Also requires offenders to pay fines (victim surcharge) in addition to their sentence

Victim Impact Statements Details the harm/loss suffered as a result of the offence Details the harm/loss suffered as a result of the offence Can read in court or present in any other manner considered appropriate by the court Can read in court or present in any other manner considered appropriate by the court Spouse/partner/family can write the statement if the victim is dead or ill Spouse/partner/family can write the statement if the victim is dead or ill Is optional, but if submitted must be considered by judge Is optional, but if submitted must be considered by judge Copy provided to the offender, the defense, and the Crown Copy provided to the offender, the defense, and the Crown

Victim Impact Statements What’s the point? What’s the point? Provides closure for victims Provides closure for victims Court can hear firsthand the impact of the crime Court can hear firsthand the impact of the crime

Victim Surcharge Imposed in addition to whatever sentence the court imposes (including absolute discharge) Imposed in addition to whatever sentence the court imposes (including absolute discharge) Money goes to victims’ assistance programs Money goes to victims’ assistance programs If sentence is a fine, victim surcharge = 15% If sentence is a fine, victim surcharge = 15% For non-fine sentences, surcharges are at least $50 (summary) and $100 (indictable) For non-fine sentences, surcharges are at least $50 (summary) and $100 (indictable) There is no maximum surcharge There is no maximum surcharge Offender can be exempted from surcharge if they can establish undue hardship Offender can be exempted from surcharge if they can establish undue hardship