Canadian criminal law is governed by the Criminal Code, which includes the principles and powers in relation to criminal sentencing in Canada.
A judge sentences a person after they have been found guilty of a crime. After a determination is made about the facts being relied on for sentencing, and hearing from both the Crown and the defence about what the appropriate sentence should be, the judge must pick from a number of different sentencing options found in the Criminal Code, based on a number of factors. Some offences have a minimum sentence, and there may also be a maximum sentence depending on the nature of the offence.
The maximum determinate sentence is a life sentence with a 25-year parole ineligibility period. For offences committed prior to 2 December 2011 all life sentences and related parole ineligibility periods are served concurrently (at the same time). In cases of multiple murder, where the offence occurred after 2 December 2011 (the date new legislation came into force), a court may, after considering any jury recommendation, order consecutive parole ineligibility periods for each murder. There are also options for an indeterminate sentence. There is no death penalty in Canada, making life imprisonment the most severe punishment to be imposed in the country.Criminal Code, RSC 1985, c C-46, s.235(1)
Sentencing hearing When a person is found guilty of a crime, a finding has been made that all essential elements of the offence have been met (either by admission through a guilty plea or after the elements have been proven beyond a reasonable doubt in a trial). However, there may be facts that did not have to be determined for the defendant's guilt to be decided (i.e. severity of a victim's injuries, motivation for the crime, etc.). If the guilty verdict was determined by a jury, the judge may have to determine what facts the jury relied on to reach their verdict (since jury deliberations are confidential in Canada).Criminal Code, RSC 1985, c C-46, s 649.
When the additional facts are in dispute, the party relying on the fact has the burden to prove it. The general standard of proof at a sentencing hearing is a "balance of probabilities". If the Crown, however, is relying on an aggravating fact or a prior conviction, the burden of proof is "beyond a reasonable doubt".Criminal Code, RSC 1985, c C-46, ss 720 to 729.1 (Sentencing - Procedure and Evidence).
There are a number of exceptions to the normal rules of evidence. For example, the judge may permit hearsay evidence. A probation officer can interview the defendant and other people associated with the defendant and file a report. A victim impact statement may be filed with the court (with the option of having it read out by the victim). The defendant is also given an opportunity to personally speak to the court.
Appeals
Either the Crown or the accused may appeal against a sentence.Criminal Code, RSC 1985, c C-46, s 675 , 676 . An appellant must demonstrate that either the sentence imposed was "demonstrably unfit" or the court "erred in principle," for example by placing undue emphasis on a particular sentence principle. Except for an appeal against a finding that the accused is a dangerous or long-term offender, the court upon allowing an appeal must then determine a fit sentence and may not remit the matter back to the court of first instance. The court of appeal considers the sentence anew and the sentence may be more or less severe than the sentence imposed, regardless of who appealed; this is referred to as the "Hill Principle."R v Hill, 1 SCR 827.
There are some additional considerations taken into account at an appeal. Given the high stakes for both the accused and the safety of the public, fresh evidence of post-sentence conduct is routinely admitted. Where the appellant was granted bail pending appeal and has presented fresh evidence indicating that reincarceration would be unduly harsh, the court of appeal may reduce a sentence despite the absence of a reviewable error. Where the Crown appeals against the sentence and the court of appeal determines that a longer period of incarceration is warranted, the court will often stay the order if the accused has been out of custody for a lengthy period of time or has fully complied with the terms of a non-carceral sentence. The court of appeal will only order the re-incarceration of the accused in cases where the facts support it or where the additional period of incarceration is substantial. Accused persons will also be given credit for complying with the terms of a non-carceral sentence.
Variations
Under the Criminal Code and the Youth Criminal Justice Act the original sentencing judge retains jurisdiction to vary a sentence imposed under a very limited number of circumstances. A probation order can be varied at the request of the accused, probation officer or the prosecution. Under s. 732.2(3) of the Criminal Code a court that sentenced the accused (or a court to which the probation order is transferred under s. 733(1)) may modify the conditions, relieve compliance of a condition or decrease the duration of the probation order. The length of probation cannot be increased since this would infringe section 11(h) of the Charter. There is virtually no case law on the constitutionality of variations rendering the probation order more onerous, such as adding terms and conditions. Conditional sentences may be varied in a similar matter except the duration cannot be varied.
Where the court imposes a driving prohibition over 5 years, the Parole Board of Canada may decrease the period of prohibition after 5 years where the court-imposed prohibition is less than life or after 10 years where the court imposed prohibition was life.
Where the court imposes a fine and specifies a required time period to pay the fine, the accused may apply to the court for an extension of the period to pay a fine. Courts will usually only grant the variation, however, if the accused has made a reasonable attempt to pay the fine or has a reasonable excuse for failure to do so. They also can appeal to get a stay at home leave.
Purpose and principles of sentencing
Purpose Section 718 of the Criminal Code sets out the purposes of sentencingCriminal Code, RSC 1985, c C-46, s 718. and acts to protect society and to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that include one or more of a codified list of sentencing objectives,Criminal Code, RSC 1985, c C-46, s 718.2. as follows: Denunciation Deterrence Separation of offenders Rehabilitation Reparation Promotion of responsibility
Principles There are a number of sentencing principles found in sections 718.1 and 718.2 of the Criminal Code: The sentence must be proportionate to the nature of the offence. The sentence must be reduced or increased depending on the mitigating and aggravating factors. The sentence must be similar to sentences imposed on similar offenders for similar offences in similar circumstances, but it remains open to the sentencing judge to deviate from the range.Colin Lachance, Matthew Oleynik, "Home on and off the (sentence) range", CANLII Connects. If the sentence is consecutive, it must not be unduly long or harsh. An offender should not be deprived of their liberty if less restrictive sanctions are appropriate. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered, with particular attention for aboriginal offenders.
Specific offenders Aboriginal offenders
The Supreme Court of Canada has held that widespread discrimination against Indigenous Peoples living in Canada, and the resulting adverse socio-economic factors they face, are the sources for their over-representation at all points of the criminal justice system. Accordingly, and as per section 718.2(e) of the Criminal Code, the court is required to consider all reasonable alternatives to imprisonment for all offenders, with particular attention to the circumstances of Aboriginal Peoples.Criminal Code, RSC 1985, c C-46, s 718.2 This section was historically interpreted narrowly as requiring particular attention only to those who live on-reserve. Application of this section was clarified in R. v. Gladue where the Supreme Court held that it applied to Aboriginal offenders generally, not only to those living on-reserve. The court found as a matter of judicial notice that the Aboriginal Peoples have a long-standing disadvantage in Canadian society and the effects are felt for generations.
Aboriginal heritage requires the court to place a higher emphasis on alternatives to incarceration that are based on traditional Aboriginal justice principles such as restorative justice, where community members and the victim will be involved in the process. However, where the crime is more serious in nature, Aboriginal heritage plays a lesser role as courts will place a higher emphasis on protection of the public, denunciation and general deterrence. Moreover s. 718.2(e) is not a substantive power which allows a court to impose a sentence outside the legally acceptable range. For instance, where an offender faces a 4-year minimum sentence, the court cannot sentence below that.
Youth offenders
Youth are sentenced under a different regime found in the Youth Criminal Justice Act (YCJA). The YCJA also dictates how and when a court can order a youth sentenced under the adult regime.
Aggravating factors There are a number of aggravating factors a judge is required to consider both at common law and by statute. Common-law factors include whether or not the victim was a vulnerable victim (children, taxi drivers, late-night clerks, etc.).
General statutory aggravating factors are found in section 718.2 of the Criminal Code. They are: Motivation due to bias, prejudice, or hate Domestic violence Abuse of person under 18 years old Breach of trust or authority Offence was committed for the benefit of, at the direction of, or in association with a criminal organization Terrorism offences
There are also specific aggravating factors for organizations found guilty of an offence. In addition, some offences have their own specific aggravating factors. For example, section 255.1 of the Criminal Code makes it an aggravating factor if a person commits a drinking and driving offence when their blood alcohol concentration is in excess of 0.160.Criminal Code, RSC 1985, c C-46, s 255.1.
Prior findings of guilt The court is allowed to take into account prior findings of guilt when determining the appropriate sentence.
For some offences, a prior finding of guilt will create a higher minimum sentence. However, the court cannot rely on the higher minimum sentence unless the Crown notified the defendant prior to defendant's plea. Even if the defendant was not notified, or the Crown chooses not to file the notice with the court, the court can still rely on the prior finding of guilt as an aggravating factor.
Credit for pre-trial custody
If a defendant spent time in custody while awaiting his trial (that is, he was not released on bail), the judge is allowed to take that into account when determining the sentence.Criminal Code, RSC 1985, c C-46, s 719(3). There used to be no specific formula, and historically judges generally gave a "2 for 1" credit for pre-trial custody.R. v. Wust, 2000 SCC 18, 1 SCR 455. This was subsequently changed by legislation.