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Sentencing

This page gives general information about sentencing. It does not give legal advice. If you are charged with a crime, you should speak with a lawyer to get legal advice. Try to speak with a lawyer before you go to court. Click here for ways to find a lawyer.

 
This page only talks about sentencing of adults (age 18 or older) who have been charged with a criminal offence under the Criminal Code or Controlled Drugs and Substances Act

The Criminal Code is a federal law that sets out most criminal offences in Canada.   It also:

  • gives procedures for dealing with persons accused of committing a criminal offence, and
  • outlines the sentencing principles to be followed, and
  • outlines penalties available if an accused is found guilty or pleads guilty to a criminal offence.

The Criminal Code is available online at: laws-lois.justice.gc.ca/eng/acts/C-46/

The Controlled Drugs and Substances Act, which deals with criminal offences like possession, production, importing and trafficking of drugs, also has some sentencing principles. The Controlled Drugs and Substances Act is available online at: laws-lois.justice.gc.ca/eng/acts/C-38.8/

Q - What is a sentence?

A -  A sentence is the punishment you receive if you plead guilty to or are found guilty of an offence. The judge decides what sentence to give you, even in a trial by jury, and even if you (or your lawyer on your behalf) and the Crown Attorney jointly recommend a particular sentence to the judge.

Q - What will the judge consider when deciding on a sentence?

The Criminal Code has sentencing principles and objectives that the judge must keep in mind when deciding what sentence to give. 

Some general sentencing objectives are to:

  • denounce unlawful conduct;
  • discourage the offender from getting in trouble with the law again;
  • discourage others from committing offences;
  • help rehabilitate offenders;
  • make amends for harm done to victims or the community;
  • encourage the offender to take responsibility for harm done to victims and the community.

The judge also considers:

  • Whether you pled guilty or were found guilty after a trial;
  • The kind of offence and how serious it was. The Criminal Code usually provides a maximum penalty for each offence. Summary conviction offences are less serious offences. The usual maximum penalty for a summary offence is a $2,000 fine or six months (sometimes up to 18 months) in prison, or both. Indictable offences are more serious offences. The maximum penalties for indictable offences vary, but are greater than those for a summary offence.  There are also mandatory minimum penalties for some offences, such as impaired driving, certain drug offences, and certain sexual offences against children;
  • Your level of responsibility for the offence, and the circumstances surrounding the offence, such as how you committed the offence.  For example: did you plan it? did you use force or a weapon? how actively involved were you (if there were others involved)?
  • Your previous criminal record (if any).  If you have a previous criminal record you may get a stiffer sentence;
  • The date of your last offence (if any);
  • Your background, including age, family and health situation, education, and work record;
  • Your attitude towards the offence. For example, are you sorry?
  • The number of similar offences in the community;
  • The kind of sentence that is usually given for similar offences;
  • Any pre-sentence report;
  • ‘Gladue’ rights, if you are Aboriginal.
Gladue rights: Tell your lawyer or the judge if you are Aboriginal.  Aboriginal people who are charged with a crime have the right to have the judge take their unique circumstances and background into account in sentencing.  These are called Gladue rights, based on a Supreme Court of Canada case called R v. Gladue.  Gladue applies whether or not you have a lawyer.

 

Q - What is adult diversion?

Adult diversion is an out-of-court way to deal with some types of criminal offences.  It is often a possibility for minor criminal offences, where the accused has no prior criminal record, regrets the offence and is willing to take responsibility for what happened.  If you are eligible for, and successfully complete Adult Diversion, then the charges will be dropped and you will not get a criminal record for that offence.  Police and the Department of Justice will however keep a record that you went through Adult Diversion.

Adult Diversion may be available if you:

  • were at least 18 when you committed the offence;
  • are willing to accept responsibility for what happened;
  • do not have a long youth record or adult criminal record;
  • have not gone through Adult Diversion in the past 2 years.

Depending on the situation Adult Diversion may involve things like doing volunteer work, paying restitution, attending counselling, going to mediation or writing a letter of apology to the victim.
Most people are referred to Adult Diversion by the police.  The Crown must agree that Adult Diversion is appropriate in the circumstances.  Go to novascotia.ca/just/corrections/adult_diversion.asp for more about the Adult Diversion program.

If appropriate, ask the police or Crown Attorney if it is possible for you to be referred to Adult Diversion. Do this before you enter a plea. 

 

Q - When does sentencing happen?

A - For less serious offences, often the judge will sentence you immediately if you plead guilty or if you are found guilty. For more serious offences, usually the judge will set another court date for sentencing and will ask for a pre-sentence report. 

If you were in custody before your trial, the judge will decide whether you should stay in custody until the sentencing hearing.

If you plead guilty, or are found guilty, and need time to prepare for sentencing, you can ask the judge to adjourn (delay) the sentencing hearing.

 

Q - What is a pre-sentence report?

A - The pre-sentence report is prepared by a probation officer, and helps the judge know more about you and your background.

The probation officer will speak with you, and may also speak with other people about you, such as your parents, other family members, or your friends.  The probation office will prepare a report including information about things like your character, criminal record, cultural background, education, family history, medical history, work experience, and willingness to make up for what happened.

The judge, the Crown Attorney and your lawyer get a copy of the report. If you do not have a lawyer, you should get a copy of the report. Make sure you read the report carefully. If information in the report is wrong, you should tell your lawyer or the judge.

Q - What happens at the sentencing hearing?

A - The Crown Attorney is the government lawyer (also called the prosecutor or ‘Crown’).  The Crown Attorney will speak first at the sentencing hearing, and will tell the judge:

  • About the offence;
  • How it was committed;
  • How much damage was done or property taken;
  • Your involvement; and
  • Your previous criminal record.

The Crown Attorney will also suggest what sentence you should get.  The Crown may also present a Victim Impact Statement saying how the offence affected the victim(s).   The victim can also choose to be in court to read his or her Victim Impact Statement.

You or your lawyer also have a chance to speak. You can bring witnesses to give evidence about your character, although it is not usual to do this. You or your lawyer will also suggest a sentence. If you do not have a lawyer, someone else such as a friend, relative, or employer can speak on your behalf, but you must be there in court.

This entire process is sometimes called ‘speaking to sentence’.

Q - What should I say when I am speaking to sentence?

A - There are three main areas that you or your lawyer should cover:

1. Your background
2. Your criminal record
3. The circumstances of the offence.

1. Your background. The judge wants to know about you. He or she wants to see that you are honest about yourself. Emphasize the special things about you, good and bad. For example, if you have been found guilty of impaired driving and you are undergoing treatment to help you stop drinking, tell the judge.

Things to mention are:

  • Your age;
  • Your income/whether you are living in poverty;
  • Where you live;
  • Whether you are married, single or in a long term relationship;
  • Whether you have children and their ages;
  • Whether other family members, such as parents, depend on you;
  • Whether you are currently in school;
  • Your future plans;
  • Whether you have any health problems;
  • Whether you have taken any steps on your own to get help with issues such as anger management or drug or alcohol addiction;
  • Your educational level;
  • Your employment record (if you are not working, tell the judge why not)
  • Your family background
  • Whether you are an Aboriginal person (see Gladue rights, above);
  • Your standing in the community. For example, do you do volunteer work or belong to a club or place of worship?
  • Whether you are an immigrant or refugee, and your immigration status.
Be sure to tell the judge, or your lawyer, about your immigration status. A judge may take immigration consequences into account in deciding on a sentence.

 

2. Your criminal record.  In most cases, the Crown Attorney will tell the judge if you have a criminal record. Listen carefully when your record is brought up so you can correct any mistakes.

You may wish to give information about your record. For example, if your criminal record is five years old and you have not been convicted of an offence since, you should tell the judge. If you have a previous conviction but it is unrelated to the present offence, you should tell the judge. For example, your previous conviction was for impaired driving while the present one is for shoplifting.

3. The circumstances of the offence. The Crown Attorney will tell the judge how the offence was committed. You might wish to explain some things.

For example, you should tell the judge if:

  • You disagree with the Crown’s version of events;
  • You were having personal, health, or financial problems;
  • You are voluntarily getting help with your problems;
  • You committed the offence out of necessity (because you had no money to buy food, for example);
  • You played a small part in the offence (if there were others involved);
  • You were drunk or on drugs;
  • You are sorry for committing the offence;
  • You are sorry for harming the victim and community;
  • You co-operated with the police;
  • You pled guilty at the first opportunity (if you did);
  • A particular sentence would affect your employment or immigration status;
  • You tried to help or repay the victim; or
  • You have suffered any loss as a result of the offence (such as losing your job).

Q - How should I act in court?

A - You need to make a good impression on the judge. When you go to court be clean and neatly dressed.

When you are in court:

  • Be polite;
  • Be honest;
  • Stand up when addressing the court;
  • Show respect for the court;
  • Call the judge 'Your Honour' (or 'my Lord' or 'my Lady' if it is a jury trial) - that is the proper form of address;
  • Think carefully before you answer questions;
  • Speak clearly so that the judge can hear and understand what you say;
  • Don't eat or chew gum;
  • Turn off your cell phone.

Q - What types of sentence are there?

1.Absolute or conditional discharge
2. Probation
3. Fine
4. Restitution
5. Jail and Conditional sentences ('House arrest')
6. Prohibitions (eg. driving, weapons)


Depending on the offence and circumstances, a judge might also order, for example:


1. Absolute and conditional discharges

A discharge means you have been found guilty, but instead of entering a formal conviction against you, the judge discharges you. The effect of a discharge is that you have been found guilty, but are deemed not to have been convicted.

The judge can only give you a discharge if:

(1) The offence has no minimum penalty, and has a maximum penalty of less than 14 years in prison;
(2) A discharge is in your best interests; and
(3) A discharge is not contrary to the public interest.  

For example, a discharge might be given to a person who has otherwise been of good character, committed a minor offence (for example, shoplifting), and whose career or immigration status could be at risk if he or she has a criminal conviction. Corporations cannot receive discharges.

There are two types of discharge: absolute and conditional.

If you get an absolute discharge, you do not have to serve any sentence – you are immediately discharged. Absolute discharges are not common. 

If you get a conditional discharge, the judge will make a probation order with probation conditions that you must meet. Examples of probation conditions are doing a number of hours of volunteer work, participating in a drug or alcohol treatment program, and keeping out of trouble with the law (and see probation below). If you break any of the conditions, you can be brought back to court and the judge may convict you of the original offence (which means you would have a criminal record) and give you a different sentence.  You may also be charged with breaking the probation order.

If you are discharged you will not have a criminal record, as a criminal record is a record of convictions.  However, there will still be a police record of your discharge.

2. Suspended sentence and probation

A judge may impose conditions for you to follow for a specified period of time. The conditions will be in a probation order. A probation order can last for up to three years. 

The judge may:

  • if there is no minimum punishment for the offence, suspend (put off) sentencing you and instead put you on probation.  If you follow the probation conditions, you will not have to serve any other sentence.  If you break the conditions the judge may sentence you on the original offence and also give you an additional sentence for breaking the probation order; or
  • give you a fine and probation; or
  • give you a jail term or conditional sentence of less than 2 years, and probation;
  • give you a discharge, as long as you meet the conditions in a probation order (see ‘conditional discharge’ above).

The judge cannot combine all 3 - that is, probation and a fine and jail.

If you are given probation you must:

  • stay out of trouble with the law (‘keep the peace and be of good behaviour’);
  • go to court when required;
  • tell your probation officer ahead of time if you change your name or address;
  • tell your probation officer or the court if you change your job.

The probation order may also order you to:

  • Report regularly to your probation officer;
  • Follow treatment and counselling recommended by your probation officer;
  • Stay away from liquor or illegal drugs;
  • Stay away from guns and other firearms or weapons;
  • Pay for the damage that you caused to the victim (called 'restitution');
  • Do up to 240 hours of volunteer work in the community (called 'community service');
  • Stay within a particular area or stay away from a particular place;
  • Follow the terms of an alcohol ignition interlock program;
  • Stay away from the people you got into trouble with;
  • Stay away from the victim (and/or the witnesses).

When you are on probation, you usually have to report to a probation officer, who makes sure that you follow the conditions of the probation order.  It is a separate criminal offence to break the conditions of a probation order.

3. Fine

For most summary (less serious) and indictable (more serious) offences you may get a fine, either alone or along with another penalty such as probation or a jail term.
Usually, the judge will take into account your ability to pay a fine and allow you time to pay. If you do not pay the fine, you can be sent to jail.

If you are unable to pay the fine you can sometimes make alternative arrangements through a Fine Option Program. The Fine Option Program allows an offender to work off a fine by doing volunteer work. To get more information or to register in a program, you can contact any probation office, or call the Nova Scotia Fine Option Program at (902) 424-8297 or toll free at 1-866-443-6995.

Victim fine surcharge

Federal and provincial laws require that persons convicted (or discharged) of a criminal offence pay a surcharge called the 'victim fine surcharge'. The surcharge goes towards victim services.

The surcharge for a criminal offence under federal laws ranges from 15 percent of any fine imposed or, if no fine is imposed, then $50 (summary conviction), or $100 (indictable offence).   The judge may impose a higher victim surcharge if the judge feels it is appropriate, and that the offender is able to pay more. 

For an offence under provincial laws, there is a victim fine surcharge of 15 percent of the fine.

A judge need not impose the surcharge if offenders can show it would cause them or their dependents undue hardship.

You cannot work off a victim surcharge through the Fine Option Program.

4. Restitution

Restitution means you would have to pay money to someone, usually the victim, as compensation for the harm you did in committing the offence, or during your arrest.

For example, you might be ordered to pay:

  • For property you damaged or destroyed, up to the replacement value;
  • For money losses related to physical or psychological injuries you caused or inflicted. For example, if the victim had to take time off work because of injuries, and lost income as a result;
  • If the victim is your spouse, common-law partner or child, or anyone else who was living with you when the offence happened and they had to move out at a result, for their costs of moving, temporary housing, food, child care and transportation.

A restitution order can be made whether you are convicted or discharged (absolute or conditional discharge), and may be made together with any other sentence. If the judge feels you would not be able to pay both a fine and restitution, the judge must make the restitution order first. 

Restitution may be part of a probation order, or may be a stand-alone order, in which case it may be enforced in a similar way to a civil (non-criminal) court order. 

5. Jail, Conditional Sentence ('House arrest')

A jail term means you have to serve your sentence in custody. Depending on the length of the term, you may serve the sentence in a federal prison (2 years or more) or in a provincial prison (less than 2 years).
Also see, What is an intermittent prison term?.

Sometimes the judge may order you to serve the sentence in the community rather than in jail. This is called a conditional sentence and it is sometimes referred to as 'house arrest'.

The judge will give you conditions that you must follow.  If you break any conditions a judge may order that you spend the rest of your sentence in jail.

The judge can only give a conditional sentence if:

  • You are sentenced to less than 2 years in jail;
  • There is no minimum jail term for the offence;
  • The judge is satisfied that the community would not be at risk;
  • It is consistent with sentencing principles, and;
  • The offence is not on the list of offences for which conditional sentences are not allowed.  For example, the judge can’t give a conditional sentence for: manslaughter; aggravated assault; arson; fraud over $5000; dangerous driving causing bodily harm or death; impaired driving causing bodily harm or death; and various offences where the maximum penalty is 10 years in jail when the Crown treats it as an indictable (more serious) offence, including:
    • criminal harassment (‘stalking’)
    • sexual assault
    • a terrorism offence
    • kidnapping
    • human trafficking
    • motor vehicle theft
    • break and enter
    • theft over $5000.

This is just part of the list.  For the complete list of offences for which conditional sentences are not allowed, see section 742.1 of the Criminal Code.

6. Prohibition order

Depending on the offence and circumstances it may be mandatory or optional for the judge to impose a prohibition order.  The length of any prohibition order varies – again, according to the offence and circumstances. 

Some examples are being prohibited from:

  • driving;
  • possessing a firearm and/or other weapons;
  • owning an animal or bird;
  • going to a public park or swimming area, daycare, school, playground or community centre where children under 16 are, or can reasonably be expected to be, present.

Q - What is the difference between a consecutive and concurrent prison term?

If you are convicted of more than one offence and you receive jail terms for each one, the judge decides whether you serve the terms at the same time (concurrently) or one after the other (consecutively).

Generally you will get concurrent sentences if the offences were committed together and were related to each other. Otherwise, you get consecutive sentences. However, it is up to the judge to decide.

Q - What is an intermittent prison term?

If you get a prison sentence of less than 90 days, the judge may give you an intermittent sentence. This means you can serve your sentence at intervals, such as on weekends. The judge will put you on probation until you have completed your sentence. If the judge orders it, you may still be on probation after you complete your time in jail.

As with all sentences, the judge considers your age and character, the offence and the circumstances surrounding the offence. In addition the judge looks at whether:

  • You will lose your job if you are given a 'straight' term;
  • You are attending school or are in a training program that should not be interrupted;
  • An intermittent term will help you avoid some of the ill effects which might flow from a straight prison term;
  • It will help your rehabilitation;
  • It will help you and your family avoid financial hardship.

Q - Can I appeal the sentence?

In most cases the sentence can be appealed. You may wish to appeal if you think the sentence is too harsh. The Crown can appeal if it thinks the sentence is not severe enough. You have 30 days from the time the judge passes sentence to appeal. You should talk with a lawyer if you decide to appeal.  The court which hears the appeal may confirm the sentence, increase it or decrease it.

Q - If I plead 'not guilty' will I get a harsher sentence?

You have a right to a trial. The law says that you should not get a harsher sentence if you plead not guilty.
While a guilty plea is a factor that the judge may take into account when deciding on a sentence, you should not plead guilty just because you think you might get a lighter sentence.

Q - Will I have a criminal record?

You will have a criminal record if you are convicted of breaking a federal criminal law, such as the Criminal Code or the Controlled Drugs and Substances Act. Examples of offences which result in a criminal record are assault, theft, drinking and driving, possession of or trafficking drugs. If your sentence is an absolute or conditional discharge (and you complete the conditions), you will not have a criminal record, as you will be deemed not to have been convicted; however, there will be a record that you were found guilty.

You will not get a criminal record if you are convicted of an offence under provincial laws like the Motor Vehicle Act or Liquor Control ActClick here for more information about tickets under provincial laws.

Q - What is the effect of having a criminal record?

A criminal record may restrict your employment and it may prevent you from travelling outside Canada. If you are convicted of another offence, your criminal record may mean you will get a stiffer sentence.

Q - Can I get a pardon (record suspension)?

If you have a criminal record but complete your sentence and stay out of trouble for a number of years, you can apply for a record suspension. As of March 13, 2012 pardons are called record suspensions. If you are given a record suspension, your criminal record will be kept separate from other records. Federal agencies, such as the RCMP, must not give out details of it. For information and to apply for a record suspension call the Parole Board of Canada Record Suspension Info Line toll free at 1 800 874-2652, or visit www.pbc-clcc.gc.ca.  You do not need a lawyer or other representative to apply for a record suspension.

If you got an absolute or conditional discharge after July 24, 1992, the record will automatically be removed from the Canadian Police Information Centre (CPIC) computer system one year (absolute discharge) or three years (conditional discharge) after the court decision. For discharges given before July 24, 1992 to be removed from the record, you must contact the RCMP at the following address:

Royal Canadian Mounted Police
Pardon and Purge Services
P.O. Box 8885
Ottawa ON K1G 3M8
(613) 998.6158
rcmp-grc.gc.ca/cr-cj/pp-er-eng.htm

You will not have a criminal record if you are convicted of breaking a provincial law. Examples of such offences are speeding, driving without insurance, or hunting without a license. However, police keep records of contacts you have with them. These records are not sealed by a pardon.

For more information on record suspension including a fact sheet and frequently asked questions visit the Parole Board of Canada's website at www.pbc-clcc.gc.ca/

Q - How can I find a lawyer?

  • Legal Aid Duty Counsel:  Nova Scotia Legal Aid has duty counsel in provincial court in some parts of the province. They can give you preliminary, free advice if you are in court without a lawyer. Call 420-7800 in the Halifax Regional Municipality or 539-7026 in the Sydney area;

  • Nova Scotia Legal Aid:  If you cannot afford a lawyer, contact Nova Scotia Legal Aid to see if you qualify.  Legal Aid is listed in the phone book under 'Legal Aid' (white pages and government section) or 'Nova Scotia Legal Aid' (white pages), or visit nslegalaid.ca for contact information;

  • Lawyers in private practice are listed in the Yellow pages of the phone book. You should look for a criminal law lawyer.  A friend, family member or co-worker might also suggest a lawyer.  If you have one, your union or workplace Employee Assistance Plan (EAP) may also offer some help with finding a lawyer;

  • You can call the LISNS Lawyer Referral Service where you may be referred to a lawyer who will give you an initial interview of up to 30 minutes for a fee of $20 plus tax.  Regular fees would generally be charged after the initial consultation.   To use LISNS Legal Information Line or the Lawyer Referral Service call 455.3135 in the Halifax area or 1.800.665.9779 toll free in the rest of Nova Scotia.

September 2013

 

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