Sentencing
March 2007
Q - What is a sentence?
A - A sentence is the punishment you receive if you plead guilty to or are found guilty of a criminal offence. The judge always decides what sentence to give you, even in a trial by jury. The judge has guidelines to follow.
There is more to sentencing than going to court and receiving a sentence from the judge. If you are charged with an offence, you should speak with a lawyer before you go to court to ensure that you understand the possible consequences of pleading guilty or being found guilty by the court.
Q - What sentencing guidelines does the judge follow?
A - The purposes of sentencing are:
- To protect society,
- To discourage the offender (called specific deterrents),
- To discourage future offenders (called general deterrents), and
- To rehabilitate the particular offender.
The judge keeps these purposes in mind when deciding what sentence to give.
The judge also considers:
- Whether the offender pled guilty or was found guilty.
- The kind of offence and its seriousness. The Criminal Code of Canada usually provides a maximum punishment for each offence. For some offences, such as drinking and driving, the Criminal Code sets minimum penalties. The Criminal Code is a federal law that sets out most criminal offences in Canada. It also gives the penalties and procedures for dealing with persons accused of committing an offence. An offence is another word for crime.
Summary conviction offences are less serious offences. The usual maximum penalty is a $2,000 fine or six months in prison or both. Indictable offences are more serious offences. The maximum penalties for indictable offences are greater than those for a summary offence.
The circumstances surrounding the offence, such as how you committed the offence, did you plan it, did you use force or a weapon, and how actively involved you were (if there were others involved).
- Your previous criminal record (if any).
- The date of your last offence (if any).
- Your age, family history, health, 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 or probation officer's report.
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 a 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 remain in custody until the sentencing hearing.
Q - What is a pre-sentence report?
A - The pre-sentence report is prepared by a probation officer. It contains information on your character, education, family history, and work experience. 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 - At the hearing the Crown Attorney, tells 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 may also present a Victim Impact Statement setting out how the offence affected the victims.
The Crown Attorney may suggest what sentence you should get.
The Crown Attorney is the lawyer who presents the case against you in court
if you are accused of committing an offence. The Crown Attorney is sometimes
called the prosecutor.
You or your lawyer 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 may 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.
This entire process is 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. The judge wants to know about you. He or she wants to see that you are honest about yourself. The judge has heard hundreds of stories and excuses, and will not be taken in by a “snow job”.
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. The things to mention are:
• Your age;
• 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;
• Your educational level;
• Your employment record; and
• Your standing in the community. For example, do you do volunteer work
or belong to a club or church?
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 were having personal or financial 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;
• The conduct of the victim was to blame in any way;
• You are sorry for committing the offence;
• You co-operated with the police;
• 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.
Q - What types of sentences are there?
A - 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.
You still have a criminal record, but if you are asked by a would-be employer if you have ever been convicted of an offence you can answer “no”.
f you get an absolute discharge, you do not have to serve any sentence. If you get a conditional discharge, the judge sets conditions that you must meet. Examples of conditions are doing a number of hours of community work or keeping out of trouble for a year. If you do not meet the conditions, the conditional discharge can be wiped out and the judge may give you a different sentence such as probation.
The judge can only give you a discharge if the following three conditions exist:
(1) The offence carries 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) It is not contrary to the public interest.
For example, a discharge might be given to a young person who has otherwise been of good character, and whose career could be at risk if he or she has a criminal conviction. It could also be given to an older person who has never been in trouble before and who is a good community member.
In both examples all three conditions have to be met.
2. Suspended sentence and probation
A judge may put off (suspend) sentence and instead impose conditions for you to follow for a specified period of time, up to three years. The conditions are set out in a probation order. If you follow the conditions, you will not have to serve any other sentence.
If you do not follow the conditions, you can be brought back to court. The judge may sentence you on the original offence and also give you an additional sentence for breaking the probation order.
The judge can give you probation
- Without making it part of a suspended sentence; or
- In addition to another sentence, such as a jail term or a fine.
If you are given probation you must stay out of trouble. In addition, the probation order may 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;
• Pay for the damage that you caused to the victim (called restitution);
• Do volunteer work in the community (called community service);
• Stay within a particular area or stay away from a particular place;
• Stay away from the people you got into trouble with.
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.
3. Fine
For most summary and indictable 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, alternative arrangements, through a Fine Option Program, can sometimes be made.
A Fine Option Program allows an offender to work off a fine. To get more information or to register in a program, you can contact any probation office.
Victim fine surcharge
Federal and provincial laws require that persons convicted 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 a maximum of 15 percent of any fine or $35 (if no fine is imposed). For an offence under provincial laws, there is a 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.
4. Jail
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 or in a provincial prison. If you are sentenced to less than two years, 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 set conditions for such a sentence.
The judge may consider a conditional sentence if:
• The offence does not set a minimum term of imprisonment;
• The court is satisfied that such a sentence would not endanger the safety
of the community; and
• It is consistent with sentencing principles.
Q - What is the difference between a consecutive and concurrent prison term?
A - 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).
The general rule is 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?
A - 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.
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?
A - Yes. 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?
A - 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?
A - You will have a criminal record if you are convicted of breaking a federal criminal law, such as the Criminal Code or the Narcotic Control Act. Examples of offences which result in a criminal record are theft, drinking and driving, or possession of drugs. If your sentence is an absolute or conditional discharge, you will be deemed not to have been convicted, but there will be record that you were found guilty. You will not get a criminal record if you are convicted of an offence under provincial laws.
Q - What is the affect of having a criminal record?
A - 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 affect the severity of sentence that you are given.
Q - Can I get a pardon?
A - If you have a criminal record but stay out of trouble for a number of years, you can apply for a pardon. If you are given a pardon, 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 on pardons, you can contact any office of the Correctional Service of Canada or call the National Parole Board, Atlantic Region Office toll free at 1-800-265-8644 or 8744 or 1-808-396-9188.
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
http://www.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 while suspended, 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 pardons including a fact sheet and frequently asked questions visit the National Parole Board website at www.npb-cnlc.gc.ca
Q - How can I find a lawyer?
A - Nova Scotia Legal Aid has some duty counsel in provincial court. They can give you some preliminary advice if you are in court without a lawyer. To contact duty counsel for youth in Sydney call 539.7026 and Halifax Regional Municipality call 420.7800. To contact duty counsel for adults not in custody in Dartmouth call 420.2159 or in Halifax call 420.3468. For duty counsel for adults in custody call 420.7800 in Halifax or Dartmouth, or 539.7026 in Sydney.
Lawyers are listed in the Yellow pages of the phone book. You should look for a criminal law lawyer.
You can call the LISNS Lawyer Referral Service where you can be referred to a lawyer who will give you an initial interview of up to 30 minutes for a fee of $20 plus tax. 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.
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