Sentencing #

General Points #

Before sentencing, counsel will:

  1. Ascertain the range of sentence by looking at the penalty provisions in the Code or statute;

  2. Decide on a sentence to recommend (kind and quantum of time, money)

  3. Seek to support the recommendation by citing purposes and principles in Code or statute.

1. Kind and range of sentence #

Code provisions will indicate whether an offence is strictly summary or indictable, or hybrid. An offence is hybrid where it allows for prosecution either “on summary conviction” or “by indictment”.

If the offence is hybrid, at the outset, the Crown must elect to proceed with the prosecution of the offence “summarily” or “by indictment”. (It may change its election in light of a change in circumstances, such as new evidence indicating more severe injuries.)1

A summary offence in the Code is punishable by up to 2 years in jail and up to a fine of $5k or both (s. 787), unless the penalty provision in the offence states otherwise.2

An indictable offence in the Code may have a minimum punishment and range up to life; but the offence provision will indicate the range.

2. Decide on a sentence to recommend #

The kind and quantum of sentence will depend on many factors, including:

-what kind of sentence is available given the nature of the offence or the limits set out in the offence provision;3

-the person’s criminal record;

-the circumstances of the offence (including the degree of offender’s culpability);

-aggravating circumstances, primarily those set out in sections 718.01 to 718.2(a); and

-mitigating circumstances, including: remorse, steps toward rehabilitation (counseling), age (youth or old age), lack of a record, strong support in the community (family, friends), dependents, employment, low probability of reoffending (in light of psychiatric or other evidence).

3. Purposes and principles in support of the recommendation #

Counsel will cite purposes and principles set out in a statute to support or justify their recommended sentence and quantum. Key provisions in the Code include:4

Purpose [of sentencing]

718 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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

‘Fundamental Principle’

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

‘Other Sentencing Principles’

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) 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.

  1. See, for example, s. 264 of the Code. ↩︎

  2. For example, s 320.19(1)(b) imposes a mandatory fine of $1k for a first offence of impaired driving, if the Crown proceeds by summarily. ↩︎

  3. For example, a conditional sentence is not available under circumstances set out in section 742.1. ↩︎

  4. For the sake of brevity (and for exam purposes), we can omit sections 718.01 to 718.04. ↩︎

© Robert Diab, TRU Law, 2022