Sentencing is the process by which a Judge determines the appropriate sentence or outcome for a crime. A sentencing hearing will take place after a person has either been convicted or has pled guilty to an offence. The Court will hear from the Crown Prosecutor and from the defence as to what the appropriate sentence should be and why.
Sentencing can be a very complex process and there can be serious consequences that result. A person’s liberty or freedom may be at stake and their reputation, employment, and ability to travel can be permanently and adversely affected. It is crucial to have experienced lawyers on your side to advocate for a fair and proper sentence.
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What are sentencing objectives?
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 sanctions that have one or more of the following objectives:
- Denunciation: to send a strong message and condemn the wrongfulness of the conduct.
- Deterrence: to discourage and deter the offender and others from committing future crimes.
- Separating offenders from society: to remove offenders from the community to prevent future crimes and to protect the community.
- Rehabilitation of offenders: to assist the offender in the reintegration and return to the community.
- Provide reparations for the harm done to victims or to the community: to make amends or compensate those who have been adversely affected by the crime.
- To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community: to ensure the offender understands their actions and considers the harm caused by their behaviour.
What are sentencing principles?
A Court that imposes a sentence must consider the following sentencing principles:
- Aggravating and mitigating circumstances
The fundamental principal of sentencing is proportionality, which means that a sentence must be proportionate to the seriousness of the offence and the degree of responsibility, or blameworthiness, of the offender.
Aggravating and Mitigating Factors
In determining a sentence, a Court shall also consider any relevant aggravating and mitigating factors. An aggravating factor is a factor that tends to increase a sentence, while a mitigating factor is a factor that tends to decrease a sentence.
Examples of aggravating factors include:
- Having a prior and related criminal record.
- Abusing a position of trust or authority in relation to a victim.
- Committing an offence against a child.
- Committing an offence to benefit a criminal organization.
- Evidence that the offence had a significant impact on the victim.
Examples of mitigating factors may include:
- Pleading guilty.
- Expressing remorse.
- Having good character.
- Undertaking rehabilitative steps.
- Suffering from mental illness or disability.
A Court must also consider the principle of parity, which means that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. It is important to remember that sentencing is an individualized process, and each person comes before the court with different circumstances. Because of this, sentences for a particular offence should be expected to vary to some degree. What one offender receives as a sentence may not be what another offender receives for the same offence.
If there are multiple offences, a Court can order that the multiple sentences be served consecutively or concurrent to each other. Consecutive sentences mean that the sentences will be served one after the other and concurrent sentences mean that the sentences will be served at the same time.
Where consecutive sentences are imposed, a court must consider the principle of totality, which means that the combined sentence should not be unduly long or harsh. This principle requires a court to determine a global sentence that is not excessive on the offender.
A Court must also consider the principle of restraint, which means that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate.
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.
What are the types of sentences?
A Court has a wide range of discretion and several options in the “sentencing toolkit” when determining a fit and proper sentence for an offender. While a Court has this discretion, it may also be bound by statutorily imposed minimum or maximum sentences for some offences. Additionally, some courts have set “starting-point” sentences for certain offences to limit unjustified disparity and to provide guidance when sentencing.
The types of sentences that a court can impose on an offender include:
- Probation Orders
- Conditional Sentence Orders
An absolute discharge is a sentence that allows a person to avoid a criminal conviction and is often said to be a “slap on the wrist”. When an offender has been granted an absolute discharge, they will not receive a criminal conviction and will be discharged without needing to take any further action. Absolute discharges are rare and typically only given in exceptional circumstances.
Unlike an absolute discharge, a conditional discharge requires a term of compliance with conditions. The offender must comply with the conditions of the conditional discharge for a certain period before being “discharged” of the offence. The term of the order may be up to three years. Conditions of the order may include reporting to probation, participating in counselling, and undertaking community service work. If an offender fails to comply with the conditions of a conditional discharge, they may face a criminal conviction of the original offence and further criminal charges.
A fine is a sum of money that is to be paid to the court. The maximum fine amount that can be imposed for summary conviction offences is $5,000. A Court can order that a fine be paid immediately or can grant time to pay a fine. If an offender does not pay the fine by a specified due date, they may be taken into custody to serve the default jail term.
In Alberta, offenders may also work off fines by completing community service work through the Fine Options Program. If an offender agrees to participate in this program but fails to complete the program or pay the outstanding balance, they may be taken into custody to serve the default jail term.
Probation is a period of supervision where the offender must abide by conditions. The term of a probation order may be up to three years. Conditions of a probation order can include:
- Reporting to a probation officer.
- Attending assessment, treatment, or counselling.
- Completing community service hours.
- Abstaining from alcohol or other intoxicating substances.
- No contact with certain individuals.
- Maintaining employment or education.
- Abiding by a curfew.
- Remaining in the province of Alberta.
It is important to stay in excellent communication with your probation officer as failure to abide by the conditions of a probation order may lead to further criminal charges and potential imprisonment.
Condition Sentence Order
A conditional sentence order is a jail sentence that is served in the community and is often thought of as the last step before actual jail. A conditional sentence order is more restrictive than a probation order and typically involves a period of house arrest or curfew.
Conditional sentence orders are only available where an offender would otherwise be sentenced to less than two years imprisonment. A court will only impose a conditional sentence order where it is satisfied that the offender is not a risk to the community. There are some offences that will not be eligible for a conditional sentence order.
The consequences for breaching a conditional sentence order can be significant. A breach of the conditional sentence order may result in the “collapse” of the order and the offender will be required to serve the remaining period of the order in jail.
An imprisonment sentence will be imposed when no other sentence is appropriate. If an offender is sentenced to imprisonment, they will serve their sentence in custody. If an offender held in custody prior to sentencing, any pretrial custody can be credited towards the offender’s total jail sentence.
An offender will either serve their sentence at a provincial jail or federal penitentiary. If an offender receives a sentence of less than two years, after any deductions for pretrial custody, the offender will serve their sentence in a provincial jail. If an offender receives a sentence of two years or longer, they will serve their sentence in a federal penitentiary. If you receive a federal sentence, you may be eligible for early release through the Parole Board of Canada.
An intermittent sentence may also be available if the court imposes a sentence of imprisonment that is 90 days or less. An intermittent sentence is a jail sentence that is served intermittently, for example an offender can serve their sentence on weekends. An intermittent sentence may be appropriate where an offender may lose their employment if the sentence were served continuously.
Other types of resolutions
A peace bond is an order made by a court with certain conditions that a person must abide by. An accused’s criminal charges will be withdrawn upon entry of the peace bond and he or she will not receive a criminal record. If the individual breaches any of the conditions of a peace bond, he or she may face further criminal charges and forfeiture of any money that was pledged or deposited to the court.
There are two types of peace bonds: statutory and common-law. A statutory peace bond can last up to 12 months and requires that a complainant have a present or ongoing fear of the accused. A common-law peace bond has a broader application. It can be obtained when the court is satisfied that the accused has breached the peace and can be in effect for longer than 12 months.
Alternative Measures Program (AMP)
In Alberta, the Alternative Measures Program is a program available under certain circumstances for a criminal matter to be diverted out of the criminal court system. The program requires that an accused person accept responsibility for the crime, but the accused does not need to plead guilty to an offence. Once a person has been admitted to alternative measures, they may be required to undertake community service work, donate to a charity, participate in counselling, pay restitution, or write an apology letter to those affected by the crime. Upon successful completion of the Alternative Measures Program, a person’s criminal charges will be withdrawn. If an accused fails to complete the program, the matter will be referred to the criminal court system and the prosecution of the accused may proceed.
Mental Health Diversion
The Mental Health Diversion Program is a program in Alberta that is intended to divert individuals charged with minor criminal offences, who suffer from mental illness from the criminal justice system, to appropriate mental health, addictions treatment, and social supports in the community. Eligibility for this program is determined on a case-by-case basis. Upon successful completion of the Mental Health Diversion program, an accused criminal charges will be withdrawn. If an accused fails to complete the program, the prosecution of the accused may proceed.
Offenders convicted of certain offences may be required to provide a sample of their DNA. The offender’s DNA will then be entered into the national DNA databank and can be checked against DNA that is collected by law enforcement. For some offences, a DNA order will be mandatory, which means that the court must make the order by law. For other offences, a DNA order will be discretionary, which means that the court can make the order if it considers it to be in the best interests of justice.
Offenders convicted of driving related offences may face a driving prohibition. A driving prohibition will prohibit an offender from operating any vehicle or other type of conveyance for a certain period of time. If an offender has a prior record for similar driving related offences, they may face a longer prohibition.
A Court may order the forfeiture of all property seized in an investigation. This means that personal property or money in an investigation can be forfeited to the Crown for destruction.
For certain offences, the Court can make an order prohibiting an offender from possessing firearms, prohibited or restricted weapons, explosive substances, and other related items. For some offences, the prohibition will be mandatory, while in others it will be discretionary. The prohibition will generally be in effect for 10 years, though in some cases, it can be in effect for longer.
Sex Offenders’ Information Registry Act
Offenders convicted of certain sexual offences will be required to register as sex offenders under the Sex Offenders Information Registration Act (“SOIRA”). Such an order may be mandatory or discretionary. The Offender will be required to provide the police with their name, address, place of employment, education, or volunteer. SOIRA orders may last for ten years or more.
Offenders may also be ordered to pay restitution to a person for expenses relating to the damage or loss of property. The expenses must be directly related to the crime. A Court will generally only impose restitution if the amount can be easily determined.
Victim Fine Surcharge
The Court may also impose a victim fine surcharge on offenders. A victim fine surcharge is a fine that is deposited into a fund to compensate victims of crimes. A Court may decide not to impose a victim fine surcharge if it would result in financial hardship for the offender.
Reports and assessments
An offender may request a “presentence report” prior to sentencing. A presentence report is a report generated by a probation officer after interviewing the offender and collateral sources. The purpose of the report is to provide the Court with background information about the offender and to advise the court if the offender is a suitable candidate for community supervision. The report may describe an offender’s childhood and upbringing, family history, education, employment, etc. When the report is completed, it will be provided to counsel and to the Judge to consider when sentencing an offender.
If you are Aboriginal or identify as an Aboriginal person, you may request a Gladue report. A Gladue report is a report prepared by a Gladue report writer, who will generally be someone that has a connection to and understands the Aboriginal community. A Gladue report is used to provide the court with background information about the Aboriginal offender with a focus on the Aboriginal person’s background and community. The report may include information about the offender’s family life, any history of residential schooling, substance abuse, or foster care, mental health issues, and education and employment. The report is meant to give the court a better understanding of the Aboriginal offender and their history, and how that history has affected them.
In Alberta, a FACS (Forensic Assessment Community Services) assessment may also be ordered in certain circumstances. A FACS assessment is a mental health evaluation prepared by a psychologist or psychiatrist that will be provided to the court for sentencing. These assessments are intended to give judges a sense of an offender’s mental state that may assist the court in determining an appropriate sentence.