After Conviction, What are the Sentencing Options?
March 28, 2021
By Hans John Kalina
Sentencing. Punishment. Penance. Conviction for a crime can happen in one of two ways. Either you plead guilty to an offence or you are found guilty after a trial. What happens after a conviction for a criminal offence?
The Canadian system of justice is designed to sentence people, not crimes. There is no ‘tariff’ that specifies which sentence is to be imposed for a particular offence. There are, however, maximums and in some instances minimum punishments that prescribed for each offence. Those limits depend on whether the procedure selected is for either a summary or indictable offence. Most offence are hybrid offences which means that the prosecutor can elect to proceed either by indictment or by summary conviction. Some offences are purely indictable and a few are purely summary.
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.
There are additional directions in sections 718.01-718.3 that specify other principles and objectives such as when children, animals, organizations or intimate partners are involved.
Section 719 states, among other things, that a sentence commences when it is imposed. The sections following this detail the procedure to be followed on sentencing. Section 720 provides for a pre-sentence report to be obtained from a probation officer. Section 722 specifies that a judge must take into account any victim impact statements.
For the purposes of this discussion, in simple terms, a judge may impose either
- Imprisonment (jail) – section 743
- Probation with conditions – sections 731-733
- Fine – sections 734-737
- Conditional Sentence – section 742
- Discharge – section 730
There are also provisions dealing with the imposition of restitution, weapons prohibition, sexual offender information registry, and DNA orders. The interactions between all of the sections are deceptively complex and may be imposed concurrently or consecutively to other sentencing provisions.
The jail sentence that can be imposed will be dependent on the offence that the offender has been convicted of and the mode of proceeding whether summary or indictable. Summary convictions offences generally carry a maximum of two years less a day imprisonment. Sentenced of two or more years are served in a federal penitentiary.
The amount of a fines that can be imposed is also dependent on offence. Summary conviction offences are generally subject to a maximum fine of $5000.00.
A conditional sentence is a term of imprisonment of less than two years that is served in the community. The offender is subject to very onerous conditions such as residential confinement along with conditions that may mirror a subsequent probation order.
A sentence that is suspended or imposes imprisonment, a fine, or a conditional sentence will result in a record of conviction on the Canadian Police Information Computer (CPIC). The only procedure in which a conviction can be expunged is by requesting a record suspension after a waiting period has passed. That period is 5 years after completion of sentence for summary convictions and ten years after completion sentence for indictable convictions.
A discharge pursuant to section 730 of the Criminal Code is not a conviction. It is however a finding of guilt. A record of a finding of guilt will only remain on the Canadian Police Information Computer for a period of three years after completion of the sentence for a conditional discharge and one year for an absolute discharge. After the waiting period is completed, the record is automatically removed from the Canadian Police Information Computer
An absolute discharge means that the offender will not have a record of conviction. The record of guilt will automatically be expunged from CPIC after one year.
A conditional discharge means that the offender will not have a record of conviction, however, there will be a record of guilt. A term of probation for up to three years may be imposed. A conditional discharge can be contrasted to a suspended sentence section 731(1)(a) which also imposes a period of probation and results in a record of conviction.
Sections 731-733 list a wide variety of conditions that are imposed in a probation order to address an issue which relates to what the court views as the cause of the offence that brought the offender before the court. These conditions may include the requirement to report to a probation officer, abstain from consuming alcohol or drugs, not to contact specific persons, not to possess weapons or perform a specific number of hours of community service. The exact conditions imposed will be at the discretion of the sentencing judge.
Note that a “peace bond” as described in section 810 is not a conviction nor a finding guilt and is not a sentencing option. It is an alternative form of disposition usually negotiated during resolution discussions.
A sentencing hearing may involve the examination and cross-examination of witnesses who are called to testify by either the prosecution or the defence. Some convictions may result in very complex and lengthy sentencing hearings. Others may be straightforward, for example, a conviction for first degree murder will mandate the imposition of a mandatory life sentence of imprisonment with no parole for 25 years. Each offender’s situation and sentencing hearing are unique.
The lawyers at the Law of Kalina & Tejpal will be pleased to speak to you about how we can assist you in navigating a sentencing hearing. We can be contacted at (416) 900-6999 or at email@example.com
Hans John Kalina is a lawyer at the Law Office of Kalina & Tejpal.