8.1 - Criminal Sentences

What are Criminal Sentences?

Once a person has been convicted of a criminal offense, it is up to the judge to decide what the offender’s consequences will be.  The sentence that the judge directs is the punishment that is imposed on the convicted person.  This section will introduce how sentences are determined, as well as a number of different types of sentences.

Goals of Sentencing

Determining a sentence for a convicted person can be a complicated undertaking for a judge.  There are six main goals of sentencing, and judges will often try to simultaneously achieve multiple sentencing goals with one prescribed sentence.  The first goal of sentencing is protection of the public.  This simply means that, if an offender is thought to be a danger to the public, then the sentence they receive will keep them away from the public for a period of time.  The second sentencing goal is retribution.  Retribution is simple punishment that a person receives because of their crime.  Third, deterrence may also be a goal of sentencing.  This may include specific deterrence, which refers to discouraging the convicted person from committing an offense again.  It also may include general deterrence, which refers to discouraging the general public from committing that offense.  Fourth, sentencing is often designed to encourage rehabilitation for the offender.  Rehabilitation includes a combination of punishment, treatment, and training to help offenders become more productive members of society.  The fifth goal of sentencing is restitution, which is a punishment that has the offender repay the victim or society to make amends for their crime.  Finally, the sixth main goal of sentencing is denunciation.  This is the punishment that the offender receives that is designed to send a message to the public denouncing the actions of the offender.  Judges may include any number of the above goals of sentencing when designing a specific sentence for an offender.

Sentencing Procedures

When a judge determines a sentence for a convicted person, it may happen immediately after trial or a guilty plea; or it may happen weeks later, once the judge has considered all of the elements affecting the case.  Sentences are influenced by statute law, case law (precedent), and the specifics of the case.  When considering the specifics of the case, the judge will consider the following three perspectives:  the offender, the victim, and society.

First, the judge should have information concerning the offender.  To obtain this information, the judge might order one or both of the following:  a pre-sentence report, and/or a psychiatric assessment.  A pre-sentence report is prepared by a probation officer (PO), and it contains information about the offender’s background, family, education, employment, physical, and mental health.  On the other hand, a psychiatric assessment is prepared by a psychiatrist, and it contains the mental history of the offender, including the results of any psychological tests ordered by the court.

Second, in order to design the most appropriate sentence, the judge also needs to consider the perspective of the victim.  To most accurately understand the perspective of the victim, the judge will ask the victim, and possibly the family of the victim, to prepare a victim impact statement.  A victim impact statement is a statement prepared by the victim or the victim’s family that describes the harm done, or the loss suffered, as a result of the criminal offense.

Finally, the judge will also consider the perspective of society as a whole when designing a sentence.  Here, the judge considers the criminal record, if any, of the offender, to most accurately gauge how best to keep society safe.  These three perspectives are considered together with the guidelines from statute and case law during the sentencing hearing.

Sentencing Hearing

The sentencing hearing is where the judge meets with the Crown and defense to hear their recommendations as to the sentence for the convicted person.  During this hearing the judge receives the following information:

• about the offense…

  • nature and severity of the crime

  • circumstances before and surrounding the offense

• about the offender…

  • pre-sentence report

  • psychiatric assessment

  • offender’s attitude towards his/her conduct

• about the victim…

  • victim impact statement

• about society…

  • criminal record of the accused

The judge will consider all of the above information within the parameters set by statute law (outlines the maximum and minimum sentences), and case law (precedents), as well as influences of aggravating and mitigating factors.  Aggravating factors are those circumstances that would increase the severity of the sentence received.  Examples of aggravating factors include:

• premeditation

• previous criminal record

• large profits from offense

• involving others in offense

• ringleader of the group

• continued offense over time

• violent offense

• number of victims

• need for deterrent

On the other hand, mitigating factors are those circumstances that would decrease the severity of the sentence received.  Examples of these include:

• impulsive act

• young or first-time offender

• guilty plea

• cooperating with police

• mental or physical disability

• short life expectancy

• minor offense

• time spent in custody

• delay in trial

Types of Traditional Sentences

Once the judge has received all of the relevant information, there are numerous types of traditional sentences that they may impose.   The first type of sentence to consider is a discharge.  This is the most lenient sentence, of which there are two types:  absolute discharge, and conditional discharge.  An absolute discharge is a sentence involving the release of the convicted person, and destroying their criminal record after one year.  The other, a conditional discharge, is a sentence where the convicted person is released under strict conditions, and their criminal record is destroyed after 3 years.

The second type of sentence to consider is probation, and this a sentence allowing the convicted person to live in the community following specific conditions, and under the supervision of a P.O. (probation officer).  Probation comes with the following three mandatory conditions:  keep the peace and demonstrate good behaviour, appear in court when required, and notify PO of change of name, address, etc.  Other conditions might also be attached.  These might include orders to stay away from certain people or locations, not possessing weapons, not using drugs/alcohol, etc.  Probation is a very common criminal sentence, and might be imposed instead of, or together with, other types of sentences. 

A third type of sentence is a suspended sentence.  This is a prison sentence that is not carried out, as long as the offender upholds certain conditions.  For example, a person receiving a 12-month suspended sentence will not go to prison; but will live those 12 months in the community following the listed conditions.  If they breach the conditions, then they may serve the remainder of the 12 months in jail.  Probation usually accompanies a suspended sentence.

The fourth example of a sentence is an intermittent sentence.  This is a prison sentence served evenings and on weekends.  These sentences are only for sentences less than 90 days long; and they are only used when the offender has a job, a family, and is not a violent offender.  Conditional sentences are the fifth type to consider, and they include a prison sentence that can be served in the community with strict terms attached.  These are used only for terms less than 2 years, and they have much more strict terms attached than those for suspended sentences.  Also, conditional sentences might include mandatory community service and/or addictions treatment.

Sentence type number six is electronic monitoring.  Electronic monitoring is a prison sentence served at home, using electronic monitoring devices.  These devices might include GPS locators, remote breathalyzer, video/phone link, etc.   Sentence type number seven is called binding over (also called a ‘peace bond’).  These are a court order to keep the peace and demonstrate good behaviour for up to 12 months.  It is technically not a sentence because it may be issued before a conviction.  The eighth type of sentence is deportation, and it involves the convicted person being expelled from Canada, and being sent back to their country of origin.  Fines are the ninth type of sentence, and these are specific amounts of money that must be paid as a penalty for crime.  Sentence type number ten is suspension of privileges, which occurs when privileges (such as driving) are withheld for a specific period of time.

The final type of traditional sentence to discuss is incarceration.  Incarceration is a sentence of imprisonment for a specified period of time.  Prison terms under 2 years are served in provincial facilities, while those over 2 years are served in federal facilities.  If an offender commits multiple crimes, and then receives multiple sentences, the sentences might be concurrent or consecutive.  Concurrent sentences are multiple sentences served at the same time; whereas consecutive sentences are multiple sentences served one after another.  Although prison terms have specified lengths, a person deemed a dangerous offender (someone who represents a threat to life, safety, or well-being of others) may be given an indeterminate sentence (prison term for an indefinite period of time given only to the most dangerous of offenders).

It is important to note that, sometimes sentences are agreed to between the crown and defense, and a judge just approves them.  This is called a plea bargain, and it occurs when an accused agrees to plead guilty to a lesser charge in exchange for a lighter sentence.

Restorative Justice Programs

Restorative justice programs are non-traditional sentencing vehicles that are used as an alternative to traditional sentences.  These  involve a focus on joint problem-solving that unites the victim, offender, and the community.  The offender accepts responsibility for their actions, and they are provided an opportunity to make amends.  There are numerous different restorative justice programs, including the following:  victim-offender mediation, family group conferencing, victim impact panel, and Aboriginal sentencing circle.

Summary

The above discussion introduced criminal sentencing.  It should be clear that there are many different types of severity of criminal sentences that a judge may pronounce on a person convicted of a crime.  Although the list of available sentences is fixed, judges view each case on its own merit, and apply the law within the specific context of the crime, offender, and victim.