How sentences are imposed
If an accused person is found not guilty, they are acquitted of the charge and are free to go, with the exception of those found not guilty on account of mental disorder.
If an accused person pleads guilty or is found guilty at trial, the Court must then determine a sentence that is fair considering the circumstances, the seriousness of the offence, and the offender's degree of responsibility.
In arriving at a sentence, the Court will have to consider several factors. For example, the Court may increase or decrease a sentence to account for aggravating and mitigating factors relating to the offender or the offence. An aggravating factor is something that increases the sentence, such as the offender's criminal record. A mitigating factor is something that decreases the sentence, for example, this is the first time the offender has been found guilty of an offence.
The main purpose of sentencing is to contribute to respect for the law and to a just, peaceful, and safe society by imposing fit sentences that have one or more of the following objectives:
- denounce the unlawful conduct and harm to the victim;
- deter (discourage) the offender and others from committing such crimes;
- separate offenders from society when necessary;
- assist in rehabilitating the offender;
- provide reparations for harm done to the victim and the community; and
- promote a sense of responsibility in offenders and acknowledgment of the harm done.
The sentence should match the offender's degree of responsibility for the offence.
The Court can decide many types of sentences or combinations of penalties. The following are some examples:
Absolute or Conditional Discharge
The Court can order that an accused be discharged of an offence after a finding of guilt, and no conviction will be registered. Conditional or absolute discharges may only be ordered for less serious offences. The Court has the option of imposing:
- a conditional discharge: this adds specific conditions, or rules, to address the accused's conduct that led to the offence. The accused must agree to the conditions for a specified period of time through a probation order and will be discharged when the conditions are met. The conditions may include:
- not drinking alcohol or using drugs;
- not going to specific places or buildings; or
- going to specific treatment or counselling programs.
- an absolute discharge: this discharge has no conditions.
Suspended Sentence and Probation
The Court may choose to put off or suspend imposing a sentence and release the offender on probation for a specified length of time. The Court may also include a fine or conditional discharge with the probation order. A person on probation remains out of custody but is supervised by a probation officer and must follow any conditions included in the probation order.
A fine is a set amount of money that the offender pays to the Court as a penalty for committing a criminal offence. A fine may be combined with another penalty, such as imprisonment or probation. Failing to pay the fine may lead to a civil judgment against the accused. There are several ways to enforce the payment of fines. For instance, an offender may pay it by participating in a fine option program, which is available in most provinces and territories except British Columbia, Ontario and Newfoundland and Labrador. If the offender is in default of a fine, the provincial or federal government may refuse to issue, renew, or may suspend, a license or a permit until the fine is paid in full. As a last resort, a term of imprisonment may be imposed for defaulting on the payment of a fine.
Where a person is convicted of an offence and the Court imposes a sentence of less than two years' imprisonment, the Court may order that the sentence be served in the community, with certain conditions, instead of jail. The Court must be confident that if the offender serves the sentence in the community, they will not endanger the safety of the public. A conditional sentence is not available where the offender is sentenced for an offence punishable by a mandatory minimum penalty, for certain offences punishable by a maximum term of imprisonment of 10 years, and for all offences punishable by a maximum term of imprisonment of 14 years or life imprisonment.
Imprisonment is the most serious sentence under our legal system because it deprives a person of their freedom. The Court may sentence a person convicted of an offence to jail. An offender who is sentenced to less than two years serves the sentence in a provincial correctional institution. An offender sentenced to two years or more usually serves the sentence in a federal penitentiary.
Where the Court imposes a sentence of 90 days or less, the Court may order that the sentence be served intermittently, or in blocks of time, such as on weekends. This allows the offender to be released into the community for a specific purpose such as going to work or school or caring for a child or for health concerns. An intermittent sentence must be accompanied by a probation order, which governs the offender's conduct while he or she is not in jail.
Indeterminate Sentence for Dangerous Offenders
After a special application and hearing, a person who commits an offence that causes serious personal injury (for example, an indictable offence involving the use of violence against another person) may be declared a dangerous offender and sentenced to an indeterminate period of detention. Indeterminate means that the offender's term of imprisonment does not have an end date. The Parole Board of Canada reviews the case after seven years and every two years after that.
In Canada, murder is either first or second degree. Persons convicted of either degree of murder must be sentenced to imprisonment for life. Persons convicted of first-degree murder are not eligible for parole until they have served at least 25 years of their sentence. Persons convicted of second-degree murder are not eligible for parole until they have served between 10 and 25 years, as determined by the Court. It is important to note that convicted persons who were under 18 at the time of the offence have different periods of parole ineligibility.
A victim surcharge must be ordered at sentencing. The amount of the victim surcharge is 30% of any fine that is imposed on an offender. If no fine is imposed, $100 is charged for a summary conviction offence or $200 for an indictable offence. The victim surcharge is paid into provincial and territorial assistance funds to develop and provide programs, services, and assistance for victims of crime.
This amount may be increased if the Court is satisfied that it is appropriate in the circumstances and that the offender has the ability to pay the increased amount. In cases where offenders are unable to pay the surcharge, they may be able to participate in a provincial fine option program, where such programs exist.
On October 21, 2016, the Government of Canada introduced legislation that would allow courts limited discretion in relation to the federal victim surcharge.
Restitution is the money the Court may order an offender to pay the victim for money that the victim lost as a result of the offender's crime. The Court is required to decide whether to issue a restitution order for all offences. These may include money to repair or replace damaged property.
Under Canadian law, the Court can order restitution:
- as a separate, or "stand-alone", order along with another sentence;
- as one of the conditions of a conditional sentence; or
- as one of the conditions of probation.
If the Court orders restitution, the offender has to pay the amount of money stated in the order to the victim to help cover his or her financial losses. The Court decides how much money the offender must pay. The Court must base the amount on the victim's records of his or her actual financial losses caused by the crime.
The victim may use a standard form (FORM 34.1 STATEMENT ON RESTITUTION) to claim his or her financial losses from a crime. This form makes it easy for the Court to know whether or not the victim is seeking restitution. If the victim is seeking restitution, he or she completes the form by describing the losses and damages for each item.
A victim should start documenting financial losses as soon as possible after the crime. This will help to ensure the victim is ready to report his or her losses at the sentencing stage.
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