At a sentencing hearing, the judge deciding on an appropriate sentence will be guided by numerous considerations, referred to as “sentencing principles,” described below.
s.718 Purpose of Sentencing
The fundamental purpose of sentencing is to protect society and 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:
- To denounce unlawful conduct and harm done to victims or to the community that is caused by unlawful conduct (punishment);
- To deter the offender (specific deterrence) and other persons (general deterrence) from committing offences (incentive to not do it again);
- To separate offenders from society, where necessary (to protect victims);
- Rehabilitation & Reintegration. To assist in rehabilitating offenders (MY FOCUS);
- To provide reparations for harm done to victims or to the community (pay back); and
- To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community (remorse).
s.718.01-03: Denunciation and Deterrence are the primary sentencing objectives for crimes against Children, Peace Officers, or Animals.
s.718.1 Fundamental Principle
Proportionality. A sentence must be proportionate to the gravity (seriousness) of the offence and the degree of responsibility (culpability / moral blameworthiness) of the offender.
The more serious the crime, the more serious the punishment.
The more culpable / morally blameworthy the offender, the more severe the punishment.
This is where the specifics of the offence, and the personal background of the offender, are taken into consideration in determining a fit and appropriate sentence.
s.718.2 Other Sentencing Principles
A court that imposes a sentence shall also take into consideration the following principles:
- A sentence should be increased or decreased to account for any relevant aggravating or mitigating circumstances relating to the offence, and the offender, including:
- Hate crime. Motivated by bias, prejudice or hate based on: race, nationality, ethnicity, language, colour, religion, gender, age, mental or physical disability, sexual or gender orientation or expression, etc.
- Spousal Abuse. The offender abused his or her spouse or common law partner.
- Child Abuse. The offender abused a person under the age of 18 years.
- Abuse of Trust. The offender abused a position of trust or authority in relation to the victim.
- Abuse of the Vulnerable. The offence had a significant impact on the victim, considering their age and other personal circumstances, including their health or financial situation.
- Organized Crime. The offence was committed for the benefit of, at the direction of, or in association with a criminal organization.
- The offence meets the criteria of terrorism.
- Custodial Offender. The offender was on a CSO (s.742.1), on parole, statutory release or unescorted temporary release from custody.
Other Aggravating Factors: A Prior Criminal Record (especially for related offences), Amount of money involved, Frequency and Duration of the offence, Degree of planning, Extent of injuries or damages, etc…
While these factors are not necessarily in the criminal code, they can be found in the common law (previous case precedents), and include circumstances specific to the offender and the offence, such as:
Youthfulness, spontaneity, provocation, intoxication, state of mind (mental or emotional), financial situation, distress, coercion, motivation, physical health, upbringing, intelligence, sophistication, lack of criminal record, chances of rehabilitation (counselling, treatment, medication), family support, future plans or ambitions, good character references, employment, extra-curricular, volunteer work, compliance with release conditions or other court orders, cooperation with authorities, risk of deportation, mistake of law, error of judgment, remorse, etc.
A Pre-Sentence Report is helpful in highlighting some of these important considerations.
A significant mitigating factor is an early Guilty Plea, because it is an admission of responsibility, the accused is giving up the presumption of innocence, and is waving his/her right to have the charges proven beyond a reasonable doubt. It saves the entire justice system the time, trouble and expense involved in prosecuting an offence. It also spares all of the witnesses the time, inconvenience and stress of having to testify in court.
- A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
- Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
- Least Restriction. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
- Custody as Last Resort. All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
When it comes to possible sentences, there are only two outcomes that really matter – whether or not the offender ends up with a criminal record.
WAYS TO AVOID A CRIMINAL RECORD
Even if someone is guilty of an offence, it is still possible to avoid a criminal conviction.
s.717 Alternative Measures Program (Adult)
- This program is generally designed for first time offenders, involving charges of a minor nature, such as shoplifting or mischief.
- Admissibility criteria are established by the Attorney General, and eligibility is determined on a case by case basis, at the discretion of individual Crown Prosecutors. This is where your lawyer will be able to exert some influence.
- If approved, you are required to complete and submit an application form.
- Note: This is a diversion from the Criminal Justice System, and therefore does not involve a plea of “guilty” or “not guilty.” You simply accept responsibility for your involvement in the offence. It is not an admission of guilt.
- Your plea is then reserved for approximately 4 months, the time it usually takes to complete the entirety of the program requirements.
- During that time, someone from the Attendance Centre will contact you and discuss what you are required to do. Usually, this involves either performing some community service hours, or making a donation of a specified amount (usually a few hundred dollars) to a charity of your choice.
- If you are successful, and if the Crown has received proof of successful completion from the Attendance Centre, then the criminal charge against you will be withdrawn by the Crown at your next court appearance, and you will continue to have no criminal record.
- There is a similar diversion program for youth (ages 12-17), entitled the Extra-Judicial Sanctions Program. It is similar in nature, but the program requirements are sometimes more creative, and may involve requirements such as writing an apology letter, or somehow making amends with victim.
- If you are not successful in completing the program, then you are expected to enter a plea (guilty or not guilty).
s.717 Mental Health Diversion Program
- This program is similar to the Alternative Measures Program. However, the focus is on mental health diagnosis and treatment.
- It is operated by a different department.
- Admission is conditional to an assessment, which takes several weeks to complete.
- If you eligible for this program, then your mater will be adjourned for approximately 4-6 months, in order to provide sufficient time to complete the program requirements.
- If you are successful, then your charges will be withdrawn.
- If you are not successful, or do not qualify, then you are expected to enter a plea.
s.810 Peace Bond
- This is a recognizance (like your conditions of release).
- It requires a Peace Officer to swear a new information in court.
- You basically enter into a promise with the court that you will abide by certain conditions, for a specified duration (usually 12 months).
- Typically, you are required to promise to pay $3000 if you breach any of the conditions.
- Typical conditions include:
- Keep the peace and be of good behaviour;
- Report to a probation officer;
- Attend for assessment and counselling as directed (usually for anger management, domestic violence or substance abuse);
- No contact with the named complainant or there persons (unless not required);
- No go to the complainant’s residence or place of employment (unless not required);
- No weapons
- This is the best result possible for any person who is guilty of domestic violence.
- It results in the criminal charges being withdrawn immediately!
- Although a peace bond is not a guilty plea, or even an admission of guilt, it does statutorily require an acceptance of the underlying facts that, at minimum, your behaviour caused the complainant to have an ongoing fear for his/her safety.
- If you cannot admit to the basic allegations, then you should plead Not Guilty, and set it for trial.
Common Law Peace Bond
- This is just like a statutory peace bond, however it involves a less formal process.
- It does not require the swearing of a new information in court by a Peace Officer.
- This is preferable in court jurisdictions where it is difficult to find an officer to get involved.
s.730 Discharge (Absolute or Conditional)
- If you do not qualify for any of the aforementioned ways to avoid a criminal record, and if you do not want to run a trial, or if you do not have a defence to the charges, then a discharge is the last way to avoid a criminal record.
- A discharge results in your criminal charges being withdrawn as well, but only after the term of the order.
- A discharge can be absolute or conditional.
- An absolute discharge involves no conditions, and results in your charges being withdrawn immediately. This is very rare.
- A conditional discharge requires you to comply with certain conditions (like a peace bond), for a certain duration (usually 6-18 months).
- If you successfully comply with all of the conditions, for the entire term of the order, then your charges get withdrawn, and you will continue to have no criminal record.
- A discharge is only available in certain cases.
WAYS TO AVOID JAIL
Least Restrictive Sentences
- A fine is the simplest penalty.
- The maximum fine for a summary conviction offence is $2000.
- You can either pay the fine, or serve the equivalent time in jail.
s.736 Fine Option Program
- You can work off a fine by performing community service hours in lieu of payment, generally at a rate of the current minimum wage.
s.731 Probation Order
- A probation order requires you to comply with certain conditions, for a specified duration of time.
- It shows up as a conviction on your criminal record.
- Mandatory conditions:
(a) Keep the peace and be of good behaviour;
(a.1) No contact with the victims (unless not required);
(b) appear in court when required;
(c) notify the court or probation officer of any change in address or employment.
- Optional conditions:
- Report to probation as directed;
- Remain in the jurisdiction of the court;
- No booze or non-prescription drugs;
- No weapons;
- Pay support to dependents;
- Perform community service hours;
- Attend for assessment and participate in counselling or treatment;
- Any other condition deemed reasonable by the court;
- If you breach any of the conditions, then you may be arrested and charged with a new offence fro failing to comply with a probation order, and the judge could revoke your probation and sentence you differently.
s.742.1 Conditional Sentence Order (CSO)
- Technically, this is a jail sentence served in the community.
- However, it is basically a probation order with teeth.
- It usually includes a period of 24/hr house arrest (with exceptions for work, school, professional appointments, church, grocery shopping, and emergencies).
- If you breach any of the conditions, not only will you get charged with a new offence for failing to comply with a CSO, but you also have to appear in front of the same judge that sentenced you, and s/he can order you to serve the remainder of the term of your CSO in jail.
- Often the term of a CSO is followed by an additional term of probation.
s.732 Intermittent Sentence
- This is ideal for anyone who works full time and does not want to lose their employment.
- Any sentence under 90 days may be served on weekends only, if the judge approves.
- Each portion of a day counts as a full day.
- If you check yourself in on Friday after work, and check out Monday morning, that counts for 4 days.
- If you check in Saturday morning and check out Sunday evening, then that counts for 2 days.
- If you work on weekends, you can request to serve your time on any other days.
s.743 Prison (less than 2 years)
- Served at a Provincial Correctional Centre, like CCC at Spyhill, in Calgary.
- A jail sentence under 2 years may also be accompanied by a probation order.
- Statutory release is usually after serving 2/3 of the sentence.
s.743.1 Penitentiary (2 years or more)
- Served at a Federal Institution, like Bowden or Drumheller.
- Statutory release is usually after serving 1/3 of the sentence.
- These are extra orders made by the court at sentencing.
- Some are mandatory, depending on the charges, and some are discretionary.
s.109 Mandatory Weapons Prohibition
s.110 Discretionary Weapons Prohibition
s.115 Forfeiture Order
s.320.24 Driving Prohibition Order
s.447.1 Order Prohibiting Having an Animal
s.487.051 DNA Order
s.490.012 Order to Comply with Sex Offender Information Registration
s.737 Victim Surcharge of 30%
s.738 Restitution Order