10. Sentencing

If you were found guilty at a trial or if you plead guilty you will attend a sentencing hearing. After a sentencing hearing a judge will decide what sentence to give you. This could be specific jail time, a fine or restrictions (such as no carrying weapons or a curfew). The Crown will present recommendations for what sentence they think would be appropriate. You will also be able present your case for a lesser sentence. You and the Crown may be permitted to call witnesses and present evidence. The judge will then decide on what sentence to give you. In some very serious cases (e.g. murder), the jury might be asked to give a recommendation. A sentencing hearing might be right after your trial or guilty plea or you can ask to have it adjourned to a later date in order to prepare.

Note: even if you did not have a lawyer assist you in the trial, you can still have a lawyer assist you for sentencing.

Objectives of sentencing

A judge needs to consider the following objectives for sentencing when deciding what sentence to give you (see s.718 of the Criminal Code):

• Denunciation of the offence
• Deterrence of the offender and of others from similar conduct
• Protection of the public
• Rehabilitation of the offender
• Reparation to victims
• Promotion of a sense of responsibility in the offender

Types of sentences

There are different types of sentences you might be facing. It is important to know the options. The type of sentence applicable to you will depend in part on the offence (some have a minimum jail time or fines attached), your circumstances and arguments you and the Crown present to the judge.

Some common sentencing types:

• Absolute discharge: An absolute discharge is a sentence where you have no punishment and will not have a criminal record after a period of 1 year has passed.
• Conditional discharge: A conditional discharge is a sentence where you need to complete specific actions (such as community service or an anger management course). Once you have successfully completed these conditions and a further 3 years has passed, you will no longer have a criminal record. If you fail to follow the conditions you might be given another more serious sentence and will have a criminal record.
• Suspended sentence and probation: A suspended sentence is when the sentence is postponed until some future time. In the meantime, you will receive an interim probation order which you must follow. Probation orders may put certain limitations on you such as no weapons or a curfew. If you successfully complete all the conditions, you will still have a criminal record, but there may be no other consequence. If you fail, you may be sentenced for the original crime.
• Restitution orders: Restitution orders state that you must pay for the cost of repairing any property damage, replacing lost or stolen property, or any physical or psychological injuries suffered by a victim.
• Fines: A fine can be ordered on its own, or with another sentencing type. Before ordering you to pay a fine, the judge will ask about your ability to pay. If the sentence for a Criminal Code offence is a fine, you will have a criminal record.
• Jail: You may be sentenced to spend a specific amount of time in jail. If you have already served some time in jail after being charged (for the offence for which you are found guilty) you will be given credit for that time (usually 1 ½ times the actual time) and the credit will be deducted from your sentence. If your sentence is “time served” or, after the credit, is less than you have already served while awaiting your trial, you will not need to return to jail unless you have other charges or another sentence to serve.
• Conditional sentence order: Is where you serve your jail sentence while you still live at home. It is not available for every offence. You will likely be under supervision and have to report periodically. You may be under house arrest, and forbidden to leave your place of residence, except for emergencies or specific stated purposes.

It is important to prepare ahead of time for your sentencing hearing. The sentence you receive can have a real impact on your life. You will want to ensure you get the best outcome for your situation. It is advisable to seek assistance from a lawyer to help you with your sentencing hearing.

When starting to prepare for your hearing consider the following:

• Check the Criminal Code (or the statute under which you are charged) to see what the maximum sentence is for the offence on which you are to be sentenced. Some Annotated Criminal Code texts will have a table of offences to help you find this information.
• Check to see if that offence has a minimum sentence.
• If you don’t know already, find out what the Crown will be saying is the appropriate sentence.
• Consider what impact that sentence would have on your life.

It is a good idea to talk to the Crown before the hearing to see if you can reach some agreement on the appropriate sentence. If the Crown’s proposed sentence would have a negative effect on you, you can let them know about the impact. For instance, if they are asking for an order that you not leave the city, you will want to let them know how that will affect you, e.g. by preventing you from doing part of your job, or visiting your kids who live in another city. If you and the Crown can come to an agreement on a sentence you can jointly present this to the judge. The judge will consider the “joint submission”. While case law strongly suggests that judges should accept joint submissions on sentencing, unless they find the submission unreasonable, the judge is not absolutely bound to agree with you and the Crown. Thus, the judge has the final decision on what sentence you will get.

When presenting your position include:

1. The sentence you submit is appropriate: tell the judge what sentence you submit is appropriate, given the circumstances of the offence and your personal circumstances, and why. Tell the judge if you and the crown have agreed on any terms of the sentence, e.g. length or conditions. If you have not reached agreement with the Crown briefly explain what parts of the Crown’s position are in dispute.
2. Your background: Give a brief overview about yourself:
   • Your full name, age and place of birth.
   • Family background and current status, including whether you have any dependents.
   • Your education and training.
   • Your job and employment history.
   • Any physical or mental health issues.
   • Anything about your background or present circumstances that will help the judge understand your situation and / or your offence.
3. Your character: You may want to show the judge evidence of your good character. You can get character reference letters from family, friends, colleagues or employers. The letters will be more useful if the writers make it clear that they are aware of the conviction. If you do not give the letter to the Crown ahead of the sentencing, the Crown may apply for an adjournment so that they can confirm the authenticity of the letters.
4. Rehabilitation plan: Have you made any steps to seek treatment if needed, e.g. counseling or drug treatment. If no rehabilitation plan is needed, and you are not likely to reoffend, you can point out that your offence was a one-time event (if that was the case) and give the reason e.g. you have a new focus on work, or a commitment to your first child and are now avoiding previous bad influences. If you were out on bail or had previous conditions, explain how you were able to follow and comply with those conditions.
5. Sentencing range: You will want to do some legal research to find other cases involving similar offences and offenders with similar background or circumstances to you. This will give you a sense of the range of sentences given in previous similar cases. Knowing the range will help you argue for a sentence that falls within that range. Point out any cases that support your position for a specific sentence. Consider the following examples:
   
   Example: 
   
   Situation: You are convicted of assault as a result of a bar fight. This is your first offence, and you have been going to anger management classes. You have recently received a diploma in carpentry. Your research found a sentencing range for offences and circumstances similar to yours to be from 2 months to 2 years imprisonment. In the case where the offender received 2 months, it was a first-time offence and the offender was going to counseling while working full-time. The 2-year sentence was for someone who had several previous assault convictions and had made no rehabilitation plan. 
   
   Argument: You will want to show how the circumstances of the 2 month case are similar to yours and therefore it would be appropriate for you to have a sentence at the lower end of the range, closer to 2 months. You might also show how your situation is different from the higher sentencing case.
   
   See Section 5 to learn more about case law research.
6. Reasons: Relate the sentence you are submitting is appropriate for to your situation. If you are arguing for a sentence that is different than the Crown’s, you might want to explain why the sentence the Crown is asking for is not appropriate. 
   
   For example, if the Crown is asking for a sentence with the condition that you stay off public transit, you can explain that you need to use the bus to get to work and a condition like this would seriously limit your ability to support your family and yourself, and would therefore make your rehabilitation more difficult.

If you have been charged with a crime and are an Indigenous person, there are special cultural considerations that the Court must consider in assessing your case. This applies to all Indigenous peoples of Canada, including status and non-status Indian, Inuit, and Métis, whether living on or off reserve. As an Indigenous person, you have special rights generally called “Gladue” rights (named after a case decided by the Supreme Court of Canada). This means the judge is to consider a restorative justice approach to sentencing that will help you and your community heal.

The judge:

• Must consider all options other than jail;
• Must consider a community sentence that will help address the issues that got you into trouble – e.g. a drug rehabilitation program, if addiction is a source of your offending;
• Must consider the adverse background cultural impact factors that you, as many Indigenous people face; and
• If a jail sentence is the appropriate sentence, must nonetheless take account of Gladue rights when deciding how long your jail sentence will be.

You must tell the court as soon as possible that you are Indigenous. The judge will want to know about you, your family, your community, and what kinds of community sentences are available to you. You can give this information to the court in a Gladue submission or a Gladue report; or, if you cannot provide the information in those ways, the judge may order that a Gladue report be prepared at public expense.

You should seek legal assistance to help you prepare a Gladue submission or report, or to ask that the judge order that the government pay for a Gladue report to be prepared.