If a person is found guilty or pleads guilty, a judge must decide what sentence to impose. Sentencing can be a confusing topic, because judges usually have many different sentencing options. Judges are given a great deal of discretion when deciding what sentence to impose, but they are also limited by the kinds of sentences the law allows for certain offences, and they are guided by the decisions of other judges.
HOW A JUDGE DECIDES ON A SENTENCE
Sentencing is an art, not a science. It is not a mathematical process that can be reduced to a formula. There are a number of different factors a judge will consider when they pass sentence. Just some of the factors a judge will consider include:
- The seriousness of the offence.
- How responsible the offender was for the commission of the offence.
- Whether the offence should be denounced as something that the community does not accept.
- Whether the offender or other people need to be deterred from committing similar offences.
- Whether the offender needs to be separated from society for a period of time.
- Whether the offender requires rehabilitation.
- What sentence might provide for reparations for harm caused to victims, or for harm caused to the community.
- What sentence will cause the offender to understand their responsibilityfor the offence, or acknowledge the harm the offence has caused to the community.
- The age, background, and personal circumstances of the offender.
- The offender’s motive or reason for committing the offence.
- Whether or not the offender is remorseful, or has already taken steps to rehabilitate himself or herself before sentencing.
- The offender’s criminal record, or if the offender does not have a record, the lack of a criminal record.
Judges consider what sentences other judges have imposed for similar offences, involving similar offenders, in similar circumstances. Judges use these prior sentences for guidance when deciding what sentence to impose. Judges will also consider the different principles of sentencing as they have been explained by higher courts. For some offences, our Court of Appeal has set a “starting point” for certain offences. For example, the “starting point” for a major sexual assault is three years in jail. A person’s sentence can be increased or decreased depending on the circumstances of the case, but the “starting point” provides guidance to lower courts about the general range of a typical offence. Despite this guidance, judges still have a great deal of leeway in deciding which sentence to impose.
TYPES OF SENTENCES
Common sentences judges can impose on an offender include:
- A period in jail.
- A “conditional sentence,” which often includes house arrest or a curfew.
- A fine.
- A period of probation, or a suspended sentence.
- A “conditional discharge” or an “absolute discharge.”
JAIL SENTENCES & INTERMITTENT JAIL SENTENCES
The best-known type of sentence is a period in jail. Jail is a sentencing option for almost every criminal offence. Most offences have a maximum possible jail sentence, and some offences also have a mandatory minimum jail sentence that the judge must impose.
If a judge imposes a jail sentence of less than two years, the person will serve the sentence in a provincial jail, such as the Fort Saskatchewan Correctional Centre or the Peace River Correctional Centre. If a person is sentenced to two years in jail or longer, they will serve their sentence in a federal penitentiary, such as the Edmonton Institution or Bowden Institution.
Another option is an intermittent sentence. If a judge imposes a jail sentence of 90 days or less, the offender can ask the judge for permission to serve the sentence intermittently (i.e. not all at once). This means, for example, that the offender could serve the jail sentence on weekends, allowing the prisoner to keep their job.
CONDITIONAL SENTENCES & “HOUSE ARREST”
For some offences, a judge can sentence the person to a “conditional sentence order,” or “CSO.” A CSO is thought of as a jail sentence that is served in the community. A conditional sentence can be very restrictive, and is much more restrictive than probation. A CSO almost always involves a period of house arrest, or a curfew, or some combination of the two. The CSO can allow exceptions to house arrest or a curfew to allow the offender to continue working or going to school.
A CSO is only a possibility where a person would otherwise be sentenced to less than two years in jail. In addition, a judge will only impose a CSO where the judge is satisfied that the offender is not an undue risk to the community if they do not serve their sentence in jail. There are a number of offences, including many violent offences, where judges are prohibited by law from imposing a CSO.
The consequences for breaching a CSO can be very significant. Because a CSO is considered a type of jail sentence, any breach may result in the person serving time in an actual jail. If there is a breach or the offender re-offends, the judge can also decide to “collapse” the CSO, which means the offender would serve the remaining period of the CSO in jail, instead of in the community.
FINES
Most criminal offences have a maximum fine of $5,000, but fines can sometimes go much higher. A judge can order that a fine be paid immediately, or the judge can give time to pay the fine. If a person does not pay a fine by the due date, they will usually be sentenced to serve time in jail in default of payment.
A person who receives time to pay a fine can apply for an extension of the time to pay. It is necessary to apply for an extension in advance of the due date, however. Extensions usually cannot be granted after the due date has passed. Judges are also unlikely to grant an extension unless the person has made some reasonable efforts to pay off the fine.
PROBATION AND SUSPENDED SENTENCES
A judge can impose a term of probation on an offender. A term of probation can last for up to three years. Probation is usually considered a good option for offenders who require rehabilitation and are motivated to improve their lives. Examples of common probation conditions include:
- A requirement to meet regularly with a probation officer.
- A ban on consuming alcohol or intoxicating drugs.
- A condition that a person attend for treatment or counselling. For example:
- Alcohol or drug addiction counselling,
- Anger management counselling, or
- Mental health counselling.
- Participating in up to 240 hours of community service.
It is a criminal offence to breach the terms of a probation order.
One form of probation occurs when a person is given a “suspended sentence.” When a court imposes a suspended sentence, it places the offender on probation. If a person violates the terms of their probation or re-offends, they can be charged with the criminal offence of breaching a probation order. If they are convicted of breaching their probation order, in addition to being punished for the breach of probation, the offender can also be brought back before the judge who originally imposed the suspended sentence. That judge can then re-sentence the offender for the original offence, and can impose any sentence the judge could have been imposed for the original offence, or extend the person’s probation.
CONDITIONAL DISCHARGES AND ABSOLUTE DISCHARGES
For some less serious offences, instead of convicting a person of a criminal offence, the judge can impose a “conditional discharge.” (Although the name is similar, a conditional discharge is very different from a conditional sentence – see above.) If a person is granted a conditional discharge, they are placed on a period of probation, with conditions similar to those discussed above.
There are many advantages to a conditional discharge. First, although a conditional discharge will appear on a criminal record, it is automatically deleted from the national criminal record database three years from the date a person is found guilty. There is no need to apply for a criminal record suspension or pardon. Second, because a conditional discharge is technically not a “conviction” in the eyes of a law, it is not treated as a conviction under the law. This can have favourable immigration or employment consequences. A person who receives a conditional discharge can honestly state that, although they were found guilty, they were not convicted of a criminal offence.
A judge will only grant a conditional discharge if it is in the best interests of the accused, and if granting the discharge is not contrary to the public interest. When deciding whether to grant a discharge, the judge will consider a number of factors, including the nature of the offence, the prevalence of the offence, whether the offence was committed for personal gain, whether the offence was impulsive or calculated, and whether it would be in the public interest for the person to have a criminal record for an offence.
An absolute discharge is similar to a conditional discharge, but there are no probation conditions attached to an absolute discharge. The person is effectively found guilt, without any punishment being imposed. An absolute discharge is automatically removed from a person’s criminal record in the national criminal record database one year from when they are found guilty. Unsurprisingly, absolute discharges are very rare.
OTHER KINDS OF ORDERS JUDGES MAKE AFTER SENTENCING
Orders to Give a DNA Sample
Offenders found guilty of certain offences may be required to provide a sample of their DNA into the national DNA databank. The offender’s DNA is then held on file, and can be checked against DNA that is collected from other police investigations. Not everyone convicted of a criminal offence must give a DNA sample. Whether a DNA sample is required depends on the type of offence. Some offences are called “Primary Designated Offences.” For these offences, a person is almost always required to provide a DNA sample. For other offences, “Secondary Designated Offences,” the Crown Prosecutor must apply to the court for an order to take a DNA sample. The judge will then consider whether it is in the best interests of justice to order that a sample to be taken.
Firearms Prohibitions and Weapons Prohibitions
Persons found guilty of some offences can be prohibited from possessing firearms, prohibited or restricted weapons, explosive substances, and other related items. In some cases, these weapons prohibitions are mandatory and the judge does not have any discretion as to whether to impose the prohibition, while in other cases the judge is given discretion and can decide not to order the prohibition. A weapons prohibition is possible whenever an offence involved violence against another person (actual or threatened). Depending on the circumstances, these weapons prohibition orders can last for up to ten years, or in some cases, for life.
Sex Offenders Information Registry (SOIRA) Orders
Persons convicted of certain sexual offences are required to register as sex offenders under the terms of the Sex Offenders Information Registration Act (SOIRA). For some offences a sex offender registration order is mandatory, while in other cases the court will only impose the order if the Crown Prosecutor asks for one.
Generally speaking, a person subject to a SOIRA order must report in person to a police station to register every year, or whenever they change their address. The offender must provide the police with their name, address, and other personal information, and must tell the police about where they are employed, where they volunteer, or where they go to school. Information in the Sex Offenders Registry is not made public, and is generally only used for law enforcement purposes, or to investigate or prevent sex offences.
SOIRA orders last for ten years, twenty years, or for life. After a certain amount of time has passed, certain sex offenders can apply to a court for a termination order, to remove them from the sex offender registry. Depending on the length of the original order, an offender must wait five, 10, or 20 years to apply for a termination order.
Restitution Orders
Judges can order that an offender pay restitution to someone whose property was stolen or damaged in the course of a criminal offence. A judge will generally only impose a restitution order if the loss or damage to the victim is easy to calculate, and if it is clear that the offender is responsible for the loss. Otherwise, the victim will have to pursue compensation through the civil court system.
Victim Fine Surcharges
The Criminal Code requires judges to impose a “Victim Fine Surcharge” on offenders after they are convicted, unless imposing the surcharge would result in financial hardship for the offender. The surcharge is 15% of any fine that was imposed, or if no fine was imposed, $50 (where the Crown has proceeded summarily) or $100 (where the Crown has proceeded by indictment).
