LAW 305: SENTENCINGProfessor Gerry FergusonFall 2013Cassidy Thomson

IntroductionReadings: Manson, pp. 1-4

Criminal Law = What society chooses to protect, provides state with power to determine when infractions occur and to respond

Punishment ≠ Sentencing A sentence is just one of many available sanctions Punishment = the intentional infliction of pain or deprivation (harm) Sentencing is the process by which a judge imposes a sentence

Brief History of Penal SanctionsReadings: Manson, pp. 5-20 and Moodle Notes

The common forms of punishment in ancient Greece and Rome included1) capital punishment (over time, capital punishment has taken many forms: stoning, throwing the offender off a cliff, burning at the stake, crucifixion, being buried alive, being hanged (dragged, quartered, entrailed), the guillotine, firing squad, electrocution, gas chamber, etc.)(2) physical mutilation (e.g., cutting the hand off of a thief, or cutting off a tongue or ear, or branding: visible criminal record, often symbolic of the crime)(3) corporal punishment (e.g., whipping, torture etc.)(4) confiscation of property(5) exile (as an alternative to capital punishment)(6) loss of civil status (voting, holding office, right to hold and inherit property)(7) forced labour (e.g., working in the salt mines or in the galley of a boat or forced to participate in gladiatorial combat)(8) prison was usually only used to hold persons awaiting trial or execution, or for debtors(9) public shaming or denunciation was used for minor offences.

In England many of the same punishments were in effect. Punishment was often conducted in public to deter others.(1) For serious crimes, capital punishment, exile, transportation to the colonies or physical mutilation were used.(2) By 1800, capital punishment was available for as many as 200 offences (felonies). [See also attached Handout on Treason](3) Benefit of clergy was used as a way to avoid capital punishment (p. 8). [Clergy were only answerable under ecclesiastical law in ecclesiastical courts. Therefore common law courts could not impose capital punishment. As benefit of clergy expanded, Parliament enacted statutes saying that many serious crimes were not "clergyable".] Just needed the verse. (4) For less serious crimes various forms of public shaming were used -- the stocks, the pillory and branding.(5) In the 1600s, and especially in the 1700s, transportation to new colonies [involving forced labour in a penal colony or indentured servitude] became a popular form of punishment (especially as an alternative to capital punishment).(6) Forced labour (in workhouses or ship galleys) was another form of punishment for less serious offenders, especially for beggars and vagrants.In England anyone convicted of a felony also lost all property rights (existing property and the right to inherit property) [attainder and corruption of blood] [page 8 and 9].

In the late 1700s transportation to the new colonies became less and less popular (to those inhabiting the new colonies). It was at this time that penitentiaries arose as an alternative to capital punishment or transportation. Penitentiaries were designed for long-term imprisonment. . Two main models of penitentiaries arose

The Pennsylvania Model -- or separate system -- involved keeping prisoners confined separately at all times. Prisoners would eat, work and pray separately and alone. Theoretically this was to give them time to reflect upon their waywardness and to keep them away from the bad influences of others while they engaged in a process of self-correction.

The other penitentiary model was the congregate or Auburn model where prisoners were confined in separate cells, but came together for work, study and prayer. In this system the prisoners were still prohibited from communicating with each other, except in exceptional circumstances.

CANADIAN HISTORY!The first penitentiary in Canada was opened in Kingston, Ontario in 1835 and it, like other subsequent Canadian penitentiaries, adopted the congregate or Auburn system.

Punishments for crimes in Canada at the beginning of the 19th century were similar to England -- capital punishment, corporal punishment, transportation or banishment, pillory and branding.

In 1800, fines were introduced in Upper Canada as an alternative to branding, [p. 15] as was imprisonment with hard labour (for 6 to 24 months) in work houses or local jails.

In 1830, branding was abolished as a punishment in Upper Canada.

Corporal punishment in the form of public flogging was abolished in the 1830s, but whipping in the private confines of the prison continued in force for serious crimes. Whipping remained an available punishment for sexual offences in Canada until 1972.

Capital punishment was also losing favour. In 1833 the Upper Canada legislature restricted capital punishment to 9 serious crimes, including treason, murder, rape, buggery, bestiality, robbery, arson, and burglary.

At the time of Confederation in 1867, the federal government was given exclusive legislative jurisdiction for determining crimes and punishments. The BNA Act [s. 91(28)] also assigned responsibility to the federal government for establishing and maintaining "penitentiaries" and s. 92(6) assigned responsibility for local jails and reformatories to the provinces (customarily for less than 2 years)

In 1869, the federal government enacted a number of Consolidation Acts. One of those Acts largely adopted the penalty structure which had been set out in a similar English Act of 1861. That penalty structure for offences started with -- capital punishment, then life imprisonment, then terms of imprisonment of 14, 10, 7, 5 or 2 years or 6 months imprisonment. That penalty scheme was then adopted in the first Canadian Criminal Code of 1892 and has pretty much remained in effect.

Capital punishment (hanging) was officially abolished in 1975, but the last hanging to occur in Canada was in 1962. [New rules for parole ineligibility were set for murder -- no parole eligibility for 25 years, subject to a "faint hope clause" application to a jury after 15 years to reduce parole eligibility to something less than 25 years.]

Throughout the 20th century, imprisonment remained as the primary sentencing response to crime, although fines and probations gained some ground during the course of the twentieth century.

The "Changing Focus of Punishment" from the 18th to the 21st centuries is summarized [pp. 13-14] as follows:

(1) At the end of the eighteenth century, most sentences were directed at the body of the offender either in the form of execution or mutilation. (2) Exclusion was also a dominant feature, achieved through transportation, banishment, and civil disability. (3) The birth of the penitentiary provided a change in course, to stipulated periods of deprived liberty during which, optimistically, some reformative process would take place. (a) Initially, the engines of reformation were thought to be penitence, discipline, and hard labour. (b) Later, the rehabilitative ideal replaced these regimes with psychological, vocational, and education programs. (4) In the twentieth century, various factors produced a renewed interest in fines and the new sanction, probation. (5) Now, at the beginning of the twenty-first century, we are in the midst of a debate about the overuse of imprisonment and the continuing search for non-custodial alternatives. One can anticipate that various disparate factors like rapidly expanding costs of imprisonment, the enthusiasm for restorative justice, and dissatisfaction about the state of criminal justice in aboriginal communities will combine to encourage new community-based alternatives with a large role for members of the community, both as contracted service providers and volunteers.

Reform of Canada's Sentencing LawsReadings: Manson, pp. 20-29CP at 1-9: "Developments Leading to Reform of Sentencing in Bill C-41"CP at 154-168: "Mandatory Minimum Sentences"

History of Sentencing Law in Canada Criminal law was codified, but sentencing was not. Thus, sentencing purposes were found in common law Courts said that sentencing was a wise blending of:

(i) Retribution/denunciation (main one) (ii) Deterrence (both general and specific) (iii) Incapacitation (long term imprisonment and dangerous offender designation)(iv) Rehabilitation (probation/parole etc)

Sentencing is “an art not a science” Sentencing was not codified until 1996 Bill C-41 No statement of important principles Judges only had maximum penalties to rely on in the CC; no guidance on important issues (e.g. jail or no jail;

probation or fine) No guidelines on prosecutorial discretion

Offence descriptions are too broad, offences not subdivided into level of seriousness, and thus they are all subject to the same maximum penalty notwithstanding seriousness

Jail was the most common sanction; imprisonment was a sanction for every offence in the code (“go-to” sanction)—over-reliance on imprisonment

Victims were excluded from the process (legally and practically); offence was between the accused and the state only

ConclusionNo legislative guidance on sentencing; appellate courts gave piece meal guidanceThis structure lead to:

(i) Arbitrary sentencing--judges had no requirement for explaining their sentence, no rhyme or reason(ii) Unequal and disparate sentencing-- no consistency in sentences for the same offence, wildly variable; and (iii) Confusion, uncertainty and loss of respect for the system Sentencing is largely "lawless" discretion Statutory delegation to judges with virtually no structure or guidance

This poses threat of the influence of a judges biases or personal history on sentencing of an offender

Law Reform Commission of Canada 1974-77Came up with proposals on restructuring of sentencing law (SEE CP p.4)

Critique Recommendation Widespread and unwarranted disparity in

sentencing existed “individualized” sentencing unjustifiably

accepted Rehabilitation and deterrence are largely

ineffective and are not legitimate goals in determining length or severity of sentences

Imprisonment in default of payment of fines is not good

Imprisonment is an over-used sanction

“just desserts” should be the operational principle in determining sentences

Restraint and the least restrictive option should be used at all stages of the criminal justice system: including sentencing

Greater regard should be paid to reconciliation and repairing the harm done

Compensation and restitution orders should be an integral part of sentencing

Community-based alternatives to imprisonment be developed and that community work orders be used where an offender could not afford to make financial compensation

Canadian Sentencing Commission 1984-87CP pg 5-7

Critiques Recommendations C-41?

(a) The absence of a uniform approach to the theory, purpose or principles of sentencing

(b) No systematic knowledge of current practices

(c) Max penalties provide no realistic guidance as to the relative seriousness of offences or what the ordinary/usual sentence should be

(d) Perceived inequity of mandatory minimums

(e) Wide range of behaviours subsumed under one offence category

(f) Little unambiguous and systematic guidance from the CA

(g) Over 1,000 judges across the country imposing sentences and no communication among them

(h) Acceptance of “individualized” sentence theory problematic

(i) Lack of accountability in charging practices or plea negotiations

(j) Variation across and within provinces in the availability of alternatives to imprisonment

(k) Sentencing law is so vague… would be unacceptable to have tax laws like this!

(l) Lack of clarity and predictability

(a) The enactment of Parliament of a statement of purpose and principles of sentencing

(b) The abolition of all mandatory minimums (other than for murder and high treason)

(c) Replacement of the current max penalty structure for all offences with a structure of max penalties of 12, 9, 6, 3, 1 years, 6 months.

(d) Abolition of parole (except for mandatory life sentences)(e) Reduction in statutory remission from one third to one

quarter of the sentence imposed(f) The abolition of automatic imprisonment for offenders who

default in the payment of fines (except in cases where there is no other way to deal with wilful fine defaulters)

(g) Establish presumptive guidelines that indicate whether custodial or community sanction would normally be appropriate (trying to reduce discretion without eliminating it)

(h) Establish presumptive range for each offence, judge can depart from this if they give reasons

(i) Creation of permanent sentencing commission to develop presumptive ranges for all offences, collect and distribute info about current practices and to review and recommend to Parliament the modifications needed

(j) Provision of necessary financial resources to develop and encourage widespread use of community sanctions

Yes

No

No

No

No

Yes

No

No

No

No

Bill C-41CP 8 – 9

Reformed Rejected Gave greater prominence to the use of

alternatives to imprisonment (s.717) Created the “Conditional Sentence of

Imprisonment” (s.741—only available if it is under 2 yrs and not available if there is a MMS)

Sets out a statement of purposes and principles in s.718, s.718.1 and s.718.2

718.1: proportionality Five aggravating circumstances listed in

718.2(a) Equity (not individualized) and restraint in

the use of imprisonment emphasized

Presumptive guidelines and no direction to appellate courts to provide greater guidance

Did not establish permanent sentencing commission

Didn’t prioritize the purposes and principles of sentencing

The objectives set out are mostly just the traditional objectives so wasn’t a significant restructuring

No mitigating factors listed

Mandatory Minimum SentencesCP pp 154-168

Most significant trend in sentencing is increased use and severity of MMS Mostly attached to drug crimes, sexual crimes and gun crimes Concern: disparate impact on minority populations, increases in prison population, prison over-crowding,

distorotion of pre-trail processes such as charge selection and plea bargaining Based on false presumption that there would no offence less serious than the MMS Proportionality is supposed to be a fundamental principle of sentencing R v Ferguson SCC held that if a MMS constituted a violation of s.12 (cruel and unusual punishment) the

appropriate remedy would be to strike down the MMS rather than give a constitutional exemption Canada’s approach to MMS is more extensive and unyielding than most other western countries We have more MMS offences and unlike most other countries we give judges NO discretion when choosing

whether to hand down the MMS. MMS is very very costly and very very ineffective

Objectives and Philosophical Dimensions of PunishmentReadings: Manson pp. 31-54 and R. v. M(CA), CP at 10, at paras. 76-82

Traditional JustificationsA. Retributive B. Utilitarian/Consequentialist

VegeanceRetributionJust deserts

Deterrence (specific/general)IncapacitationReformation/rehabilitation

Emerging JustificationsC. Expressive/Communicative D. Restorative

DenunciationCensureMoral Instruction

RepairHealRestore (peace)

Punishment is best explained by a merger of the above justifications and rationales, rather than by picking one justification/rationale to the exclusion of all others.

A. Retributivist Theories

Retributivist theories have three key aspects:1. Offenders "deserve" to be punished2. The state has an obligation to punish offenders3. The notion of proportionality, i.e. the offender should be punished no more or no less than that which is

"deserved". An early and rudimentary form of proportionality was "an eye for an eye"; retributivists no longer demand that type of "copy cat" proportionality.

Early Retributivist TheoriesKant (1770s) - Kant's view of punishment and responsibility are deeply embedded in our criminal law system. His views are premised on his notion of human beings as "rational, autonomous persons". In other words, humans had the capacity to reason and to choose. If a human being had the capacity to reason between right and wrong and chose to do wrong, then Kant argued that he or she "deserved" to be punished and that the state had an obligation to impose that punishment.For Kant, punishment should not be administered merely as a "means" for promoting some other social goal -- deterrence, protection etc. Where punishment was deserved, it should be imposed whether or not those other goals would or could be met by punishment. For Kant, to punish people to achieve other social goals, is to treat human beings as "means" rather than as "ends" (and that for Kant would be a violation of human dignity).Kant argued that retribution includes the notion of proportionality which he referred to as an equality between the offence and the punishment. A proportionate punishment would be determined by both the seriousness of the offence and the circumstances of the offender (including the offender's intention when committing the crime).Hegel (early 1800s) Hegel's conception of the retributivist justification for punishment was premised on the notion of a "moral balance sheet". A wrong or crime required a response by the state to balance out that wrong and to restore the right. In other words punishment annulled the wrong and reasserted the right or value which had been violated. Punishment restored the moral balance in society.Hegel also recognized that retributive forms of punishment required some degree of proportionality.

Retribution in Modern Sentencing PracticeJames Fitzjames Stephen -- the 19th century "father" of the Canadian Criminal Code -- considered retribution as the primary justification for punishment. One of his earlier codification predecessors -- Jeremy Bentham -- argued that punishment should be justified upon utilitarian grounds -- deterrence, incapacitation or rehabilitation.In Anglo-Canadian sentencing law -- as reflected in judges' decisions -- retribution was the principal rationale -- although courts would also refer in some instances to deterrence or incapacitation, and less frequently rehabilitation.In the latter half of the 20th Century, the word "retribution" fell into some disfavour -- and many courts began to refer more frequently to deterrence and rehabilitation as primary sentencing goals.The use of the word retribution fell into some disuse because of its comparison to the more distasteful word "vengeance".

Issue Case HeldIs retribution a legitimate rationale of sentencing?

R v Hinch (BCCA 1968)

The court found that retribution should be excluded from sentencing because of its apparent affinity with vengeance.

R v M(CA) (SCC 1996)

Retribution involves no vengeance in sentencing. It merely reflects the moral culpability of the offender and requires the imposition of a just and appropriate punishment. NOTHING MORE!!!

Distinguishes retribution from vengeance. Vengeance is uncalibrated (disproportionate), based on emotions such as anger, imposed by the victim rather than the state; whereas retribution represents an objective, reasoned and proportionate response by the state to the wrongdoing of the offender.

Distinguished from denunciation. While retribution demands a sanction that reflects the moral blameworthiness of the offender – Denunciation mandates the sentence communicate society’s condemnation of the conduct of the

offender.

Just Deserts – Modern expression of retribution and Andrew von Hirsch For the past 30 years, the retributivist approach to punishment has been usually characterized as "just deserts"

-- which is seen as a more palatable expression than "retribution". Andrew von Hirsch is one of the better known philosophical proponents of the "just deserts" approach. von

Hirsch, and other modern retributivists, do however recognize that punishment has important utilitarian objectives as well. But they would argue that those objectives should be achieved within the context of what is otherwise a "justly deserved sentence".

von Hirsh's conception of just deserts includes the creation of a penalty scale to reflect different levels of offence seriousness. For von Hirsch, denunciation and censure are key societal objectives for a "just deserts" sentencing model.

The Law Reform Commission of Canada and the Canadian Sentencing Commission (1987) both advocated "just deserts" as the primary rationale for sentencing.

It is also interesting in this context to examine whether retribution or just deserts appear in the statement of sentencing objectives and principles enacted under Bill C-41 in 1996: ss. 718, 718.1 and 718.2. Note that the words "retribution" and "just deserts" are not used, but the concept of retribution is still alive and well in the use of the expressions "just sanctions", "denunciation" and "proportionality".

Criticisms of ‘Just Deserts’ Michael Tonry and others are critical of "just deserts" as(a) over simplified - "real cases can not be so easily grouped to produce categories of "like-situated offences and offenders:(b) unfair in giving similar punishments to persons from vastly different socio-economic life experiences and situations, and(c) just deserts is contrary to the principle of applying the least restrictive penalty/punishment possible.

B. Consequentialist or Utilitarian Justifications

Under consequentialist or utilitarian theories, punishment is justified by the assumed benefits that the punishment will provide to society – deterrence, incapacity, rehabilitation

Bentham (in the late 1700s and early 1800s) was one of the key proponents of utilitarian justifications for punishment. Some of his key utilitarian conceptions of punishment are summarized in your Text at page 42.

Utilitarians recognize that utilitarian benefits must be pursued within some framework of justice (i.e. it is not just and therefore appropriate to punish the innocent even if that would achieve some greater measure of general deterrence).

Deterrence (both specific and general) 18th and 19th centuries, deterrence was premised on the belief (by Bentham, Mill and others) that humans are

"rational actors" weighing the advantages and disadvantages of all their actions -- including the choice to commit crimes. Thus for deterrence to work, the pain of punishment must be equal or be greater than the pleasure of crime in order to deter both the individual -- and others -- from choosing to commit further crimes.

20th century, the "deterministic" beliefs that crime was very often a function of an offender's psychological, social and economic background rather than simply a matter of rational, autonomous decision-making, shifted some of the utilitarian focus of punishment onto the other utilitarian functions of incapacity and rehabilitation, and not simply deterrence.

Specific deterrence: If punishment deters the specific offender, one would expect a drop in the recidivism rates. 1999 meta-analysis of over 50 studies (involving over 336,000 offenders). That study concluded there was no evidence that prison sentences reduced recidivism. In fact, the study indicated that prison sentences produced a slight increase in recidivism. The authors of that meta-analysis list four important policy implications which flow from the results of their study (see Text p. 44):

1. Prisons should not be used with the expectation of reducing criminal behaviour.2. The excessive use of imprisonment has enormous cost implications.

3. It is important to determine who is being adversely affected by imprisonment and this requires repeated, comprehensive assessments of offenders' attitudes, values and behaviours during incarceration. And

4. Incapacitation should be the primary justification of imprisonment." General deterrence: Empirical evidence to date has not convincingly confirmed the existence or the amount of

general deterrence gained by imposing sanctions. There is an overall belief by the public, the judiciary and even the Canadian Sentencing Commission that legal sanctions do have some overall deterrent effect on crime but how much deterrent effect is quite unknown.

Deterrence studies also confirm that whatever deterrent effect exists, it has more to do with the certainty of punishment (i.e. the probability of getting caught), rather than the severity of the punishment. (See e.g., the recent 1999 University of Cambridge study cited at p. 46 of your Text.) A very important implication of this deterrence research -- an implication which is not yet embedded in the minds of either judges or legislators -- is the empirically proven fact that an increase in sentence severity is not likely to produce an increase in either general or specific deterrence.

Incapacitation It is generally agreed that imprisonment, - produces an incapacitative effect on the individual offender. Apart

from the commission of crimes within the prison, the offender cannot normally commit crimes against the rest of society while imprisoned (although there have been exceptions to that), (e.g., mob bosses directing some activities from prison).

The major difficulty with incapacitation is determining the extent of incapacitation which arises from imprisoning an offender. This calls for a determination of the unknown -- how much crime would the offender commit if they were not imprisoned. Secondly, imprisoning this offender may not prevent those crimes which the offender would otherwise have committed, i.e. the job of the drug trafficker who is now imprisoned will simply be taken over by another drug trafficker.

Another disturbing aspect of incapacitation is our inability to accurately predict -- at least on a statistically relevant basis -- which offenders will reoffend and which will not. Psychiatric and psychological predictions of dangerousness are notoriously bad. Forensic psychiatrists and psychologists are typically wrong two times out of three when it comes to predicting dangerousness -- they are predisposed to overpredicting dangerousness, since underpredicting dangerousness will leave society at risk and their professional reputation in tatters.

Although new forms of actuarial assessment of future dangerousness has reduced the number of false predictions of dangerousness, the accuracy of dangerousness predictions is still except in the most obvious of cases, disturbingly inaccurate.

Rehabilitation In the mid-1970s, Robert Martinson's article "What Works? Questions and Answers About Prison Reform"

provided a very pessimistic view of the reformative impact of any and all rehabilitation programs in prison. Martinson's claims were overstated, but they did have a chilling impact on the pursuit of rehabilitative programs in prisons.

More recent studies have resurrected some enthusiasm for rehabilitative programs in prisons. While imprisonment should not be justified on the basis of achieving rehabilitative goals, there is a strong belief that rehabilitative opportunities should be provided to those inmates who wish to take advantage of them.

Generally non-prison sentences are seen as a more legitimate method for pursuing rehabilitative goals (probation and conditional sentencing).

Conclusion - two main weaknesses with utilitarian justifications for punishment:

(1) there is little or no achievement of the utilitarian goals, whether that be deterrence, incapacitation or rehabilitation;

(2) utilitarian rationales run into the moral problem of using individuals as a means to achieve a collective end -- a proposition which at least some philosophers feel is a serious threat to the notion of human dignity and autonomy.

C. Communicative or Expressive Justifications for Punishment This is expressed in terms of punishment being a denunciation of and a censure of wrongful conduct, and this

denunciation and censure is seen as an important function of punishment for both the individual and society at large.

Manson suggests that denunciation and censure have aspects of both just deserts and deterrence. As Duff says "punishment expresses condemnation: it denounces and formally disapproves the criminal's act;

it disavows that act as one which is not to be tolerated or condoned." It also satisfies the victim's need to hear public disapproval of the wrong which has been committed. Censure and denunciation are also important elements of restorative justice which requires acknowledgement of the wrong done and efforts to repair the harm caused to both the victim and the community.

David Garland expresses the communicative theory of punishment in different language. At page 53 of your Text he states: "In the course of routine activities, punishment teaches, clarifies, dramatizes, and authoritatively enacts some of the basic moral-political categories and distinctions which help form our symbolic universe. It routinely interprets events, defines conduct, classifies action, and evaluates worth, and, having done so, it sanctions these judgments with the authority of law, forcefully projecting them on to offenders and the public audience alike."

D. Restorative Justice: o Sees not 2 parties but 3: the state, the offender, and the communityo Sees that state as the facilitator of reconciliationo Focuses on reparation and healing a tear in our communityo Long history, but it is not really embedded in our current justice systemo Typically used on the periphery and is only used where the justice system does not want to deal with a particular

caseo There are complications because of the risk associated with admitting fault

E. Merged Theories

As noted at the beginning, punishment is best explained and rationalized by the merger of both retributive and utilitarian explanations. As the legal philosopher H.L.A. Hart has observed, any morally tolerable explanation and justification for the institution of criminal punishment must exhibit a compromise between the distinct and partly conflicting principles of retribution and utility.

Judicial Discretion and the Methodology of SentencingReadings: Manson pp. 56-74

Sources of Judicial Discretion

Historically Sentences were done by trial judge and there was no mechanism for appeal until the 1900s Most punishments were originally capital, so there was no room for discretion until imprisonment began to be

introduced (in the 1800s)

The Criminal Code There is always a maximum punishment set out But usually no range given, intervals of 6months, 2yrs, 7 yrs, 14yrs and Life for max The maximum is typically so high that it gives no instruction to the judges The code had originally virtually no minimum sentences. Minimums are unacceptable. Mandatory minimums are often challenged under cruel and unusual punishments.

- standard for cruel and unusual is very high though so you'd need a very disproportional sentence for it to be found cruel and unusual.

Judges were left to decided within the parameters usually just under the mandatory maximums. 'not more than life, not more than 14' There was no codification of the purposes until 718 in 1996.

Look at 718 (3) for the codification of the judicial discretion.

Current Framework1. Look at the 718 principles and objectives2. Look at the max in the CC for the offence3. Check for a mandatory minimum4. As long as you are within the above three parameters, the rest is left to judicial discretion

Methodology

Traditional Approach

AKA the individualized approach Sentences are determined by the trial judge and left to their discretion for each case Focused on finding a fit sentence for the individual and the circumstances Creation of the individual with no hard and fast rules

R v McDonnell (SCC 1996) “The determination of a just and appropriate sentence is a delicate art” “no such thing as a uniform sentence” “Inherently individualized process” Parity is a fruitless exercise **note this case was decided before the 1996 amendments**

R v Willard (1953 SCC) Sentencing is a “wise blending of deterrent and reformative purposes” and “retribution is not entirely

disregarded” Sentencing today is still a “wise blending” as it is “an art not a science”

R v M(L) (2008 SCC) Sentencing is not “an exact science”

R v Nasogaluak (2010 SCC) The limits to judicial discretion is previous case law, but this is still not a hard and fast rule

Criticisms With the individualized approach, disparity is a huge issue Because there is no ordering of the objectives in s.718, the sentence depends a lot upon what objectives the

judge decides to emphasize Thus sentencing is a lot to do with who your judge is

Starting Point/Appellant Court Ranges

Appellant Range This is where the appellant court will say this type of offence will usually be a 2-5yr sentence for ex Judges can still go higher or lower than the norm if they have a good reason Aggravating or mitigating factors are still considered Because judge has to give reasons when they go outside the range, it gives an accused or the crown something

to appeal or argue about.

Starting Point Came from AB Where an appellant court sets a starting point for an offence, and then a trial judge can go up or down from

there depending on mitigating and aggravating factors

R. v. McDonnell, CP at 38-68 SCC on Starting Point sentencing: Facts: Man sexually assaulted 2 teenage girls at different occasions when he came home drunk.

TJ found that the nature of the sexual asslauts was not major – sentenced him to 12 months in custody and 2 yrs probation

CA: Found the assaults were both major ones and sentenced the appellant to five years imprisonment—say TJ made an error

SCC: It can never be an error of sentencing principle to deviate from judge - made categories of assault. 1. If appeal courts could create categories and treat deviation as an error, it would diminish requisite

deference to sentence, starting points are too rigid2. Only parliament, not courts can create categories of offences for sentencing purposes.3. BUT Recognized that starting point sentences, as well as ranges, may serve as useful guidelines.

Diss: Starting points aren’t rigid, they essentially work like this:1. Look at the offence2. Describe the typical set of facts/factors in detail3. Then decide the starting point4. TJ can then consider mitigating or aggravating factors… so still has lots of discretion

***The 1996 amendment gave us the majority of modern sentencing law – SEE Summary from CP on Bill C-41 (p.1-9)

R. v. Arcand, ABCA CP at 69-76 on sentencing law reforms – post McDonnellThree steps to creating a starting point:

1. Look at offence2. CA clearly describes the category created3. Set a starting point for that category, (considering other cases, collective court experience, consensus of social

values and policy considerations for the crime in question). Note: There is no error in assigning a demonstrably unfit sentence (by TJ) merely because he doesn’t follow starting

point. However, his departure from the starting point should be explained and grounded in proportionality.

Sopinka’s concerns from McDonnell remain – Starting point sentences are merely guides and do not displace the need for an individualized process that takes account of all relevant circumstances concerning the offence and the offender.

Role of the Court of Appeal

R v McDonnell SCC 1996Issue: What is the appellate court’s role in sentencing appeals?Held: An appellate court can only vary a sentence if it is “demonstrably unfit” or where the trial judge has made an

error in principle, or failed to consider a relevant factor/over-emphasizes inappropriately one factor. (reiterated from R v M(CA))

Rns: The deferential review standard comes from s.717(1) of the CCC The Appellate court’s jurisdiction is merely to consider “fitness” per s.687(1) So the deferential stance, combined with only able to review ‘fitness’, leaves us with the demonstrably unfit

standard. This is supported by the fact that the sentencing judge gets to see and hear all the witnesses which is important

b/c sentencing is a subjective process, has experience and qualifications in sentencing, is part of the community where the harm was done.

R. v. M (L), 2008 SCC 31 SCC Reaffirms the Standard for Appellate Deference in SentencingFacts: The accused (a man with a previous record of sexual assaults on minors) was convicted of sexually assaulting his

daughter (while she was between the ages of two and four), and of making, distributing, and possessing child pornography involving his daughter and others.

Trial: The sentencing judge imposed the maximum sentence of 10 years imprisonment on the count of sexual assault and a consecutive 5 year sentence for the counts relating to child pornography, resulting in a global sentence of 15 years. The sentencing judge also found the accused to be a long-term offender and sentenced him to 10 years supervision in the community. The only mitigating factor recognized by the sentencing judge was the fact that the accused acknowledged his sexual deviance. Even so, he did not show regret.

Appeal: The Quebec Court of Appeal reduced the global sentence to nine years. SCC: A majority of the Supreme Court of Canada (Fish J. dissenting) allowed the Crown’s appeal and restored the trial

judge’s sentence, including the maximum sentence for sexual assault.

(1) Appellate Court cannot vary sentence just because it would have given a different one(2) Absent an error in principle, failure to consider a relevant factor or overemphasis of the appropriate

factors, the sentence MUST BE CLEARLY UNREASONABLE for an appellate court to change it(3) Standard of “demonstrably unfit” upheld

R. v. Nasogalauk 2010 SCC 6 [Moodle Handout]Wide discretion granted sentencing judges has limits. Discretion is Fettered by:

case law general ranges set down in case law in accordance with parity (CODE) must heed ranges, but can order outside if it is shown to be in accordance with the principles and objectives of

sentencing – considering Circumstances of offence and offender and needs of community. Reiterates M(CA) standard BUT:“overemphasis of appropriate factors” doesn’t mean that a court of appeal can interfere simply because they have weighed the factors differently. They can only interfere if there is an emphasis of one factor or if not enough weight was given to another.

Principles of Sentencing Principles provide framework from which judges exercise discretion Principles are used to justify an individual sentence imposed on a specific offender, so conceptually different

from justifications for punishments which are about sentences in general.

Principles are the analytical concepts which refine and shape the process of choosing objectives.

Proportionality Manson pp. 74-94s.718.1: Fundamental Principle: Proportionality

In order to have a “just sanction” (from the overriding objective in s.718) a sentence must be proportionate Proportionality is based on the Gravity of the Offence and the Blameworthiness of the offender

Gravity(1) Sentence must proportionally reflect the relation in terms of gravity to other offences(2) Sentence must also reflect the varying degrees of seriousness of that type of offence(3) Harm Caused: the actual harm caused may increase the gravity of the offence, ex Shanks or Impaired driving,

where the same conduct and amount of blameworthiness results in a greater sentence if death is caused. (4) Must also consider the risk of harm, if none or less than the full risk caused.

Blameworthiness(1) Degree of Causation: the more responsible, the more blameworthy(2) Degree of participation: whoever mainly brings about the offence is more blameworthy than others

R. v. M(CA), CP at 10, paras. 38-43 and 92

Proportionality is a constitutional obligation—protected by s.12 but this only protects against grossly disproportional sentences.

While there is no “ceiling” on fixed term sentences, proportionality does place some limits on how long an offender may be sentenced for a fixed amount of time.

R v Arcand 2010 ABCA

The principle of proportionality must be followed: the severity of a sanction needs to reflect the overall degree of moral blameworthiness, which is determined by the gravity of the offence and the offender’s degree of responsibility.

Nasogaluak SCC 2010

Whatever weight a judge gives to the objectives under s.718, the resulting sentence must fit within the principle of proportionality

Proportionality means that “a sentence does not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence”. Thus proportionality does provide a limit or restraint on sentencing, as no one can be punished more than necessary if the proportionality principle is observed.

Parity Manson pp. 74-94s.718.2(b) Similar offenders, in similar circumstances should result in similar sentences.

Note it is “similar” and not “identical” Becomes an argument about what is relevant: only need to consider if factors that are relevant to sentencing

are similar Also perhaps some factors need to be more similar than others: what weight to give each factor when

determining if there is over-all similarity?

Reality of Parity Not always achievable even between co-accused Offenders are rarely similar Offences need to be carefully characterized before comparison can be meaningful Can’t consider case law that is too old, because what was appropriate in the past may no longer be: society’s

values change!

Disparity The amount of deference given to trial judges often increases disparity, as an appeal court cannot interfere

simply to insure parity No information is collected on sentences across the country and what is being done, so hard for trial judges to

know what is going on outside there courtroom or how to ensure parity Lack of guidance in which objectives are most important means disparity may occur if different judges

emphasize different objectives even in similar cases Emphasis on the traditional ‘individual’ approach to sentencing continues to advance disparity

R v M(L) SCC 2008“the principle of parity does not preclude disparity where warranted by the circumstances because of the principle of proportionality”. Thus parity can only warrant appellate court intervention where there is a “substantial and marked” departure from the sentences given to other similar offenders who have committed similar crimes.

TotalityR v M(CA)“Totality” refers to the fact that the length of the cumulative sentence (i.e. where there are multiple sentences) must be proportional as well. This poses a challenge as each individual sentence while proportional may end up with a total sentence that is disproportional.

Thus proportionality, through the principle of totality, operates as a limit or restraint on cumulative sentences.

RestraintReadings: Manson pp. 95-96Found in three CCC provisions:s.718(c): “separation” only “where necessary”s.718.2(d): “not to be deprived of liberty, if less restrictive sanctions…appropriate”s.718.2(e): “all available sanctions other than imprisonment”Thus the principle of restraint means that incarceration is a last resort and the court should seek the least intrusive sentence possible.

R. v. Proulx, CP at 108, paras. 14-20 Sentencing reform in Bill C-41 …notes two of Parliament’s principle objectives:

(1) reduce the use of prison as a sanction(2) expand the use of restorative justice principles in sentencing.

Largely a response to over-incarceration in Canada, which is ineffective in relation to rehabilitative goals of sentencing and in relation to broader public goals. Taken together 718.2(d) and (e) provides that all sanctions other than incarceration be used.

With the Bill C-41 reform of sentencing, the objective shifts from denunciation to emphasize the goals of restorative justice.

R. v. Gladue, CP at 77-91Facts: Ms. Gladue 19 – stabbed her partner to death in alcoholic fit of rage at his cheating on her with her sister. Pled

guilty to manslaughter – sentenced to 3 years imprisonment by the TJ. Because she lived in an urban area, TJ found that her circumstances were not influenced by being an aboriginal.

BCCA: Found the TJ erred in concluding that 718.2(e) does not apply to aboriginals living off reserves

SCC: Everyone agrees that 718.2 is to address the over incarceration in Canada and specifically the disproportionate incarceration of aboriginals in the justice system. Sentencing is only one step in addressing this problem which stems from racism and institutions being less inclined to grant bail or an inclination to impose longer prison sentences.

s.718.2(e) alters the method of sentencing not necessarily the result

A Court under s.718.2(e) MUST consider the circumstances of aboriginal offenders: (1) Unique systemic backround factors playing a part in bringing the offender before the court

- Years of economic dislocation = low income, high unemployment, lack of opportunity, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation.

- Victims of systemic and direct discrimination, poor social and economic conditions. They are adversely affected by incarceration and less likely to be rehabilitated thereby.

(2) sentencing procedures available and appropriate in circumstances because of particular heritage or connection- Most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of

restorative justice. - The current concepts of sentencing are inappropriate because they frequently do not respond to the

needs, experiences and perspectives of aboriginal people or communities, placing emphasis on the aboriginal perspective.

- Thus, community based sanctions FTW.

Sentence should be holistic and designed as a fit sentence in the circumstances. Focus is on the individual. All circumstances must be considered (offender, offence, the victims, and the community, including the unique circumstances of the offender as an aboriginal person).

R. v. Ipelee; R. v. Ladue, CP at 92-93

The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing ….recognizing different worldviews, different sanctions may more effectively achieve the objectives of sentencing in a particular community.

Placing the onus on the offender to show the causal link between background factors (assimilation, colonialism, residential schools and religious persecution…) and the commission of the offence revealed an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples and is an error in law.

s.718.2(e) does not operate as an excuse or justification and MUST still consider even if it is a serious offence, while it may not have much of an effect on the result in serious cases, this is not a reason not to consider the Gladue principles for Aboriginal offenders.

Data on Gladue-Related Issues, CP at 94-107

Rules of Sentencing

Multiple Offences: Concurrent or Consecutive Issue Where Rule NotesWhen to use concurrent vs consecutive

s.719(1)default

Sentences are concurrent unless authorized or provided for in the relevant enactment.

This essentially codifies the common-law position, that sentences run from the time they are imposed.

Exception s.85(4), 467.14, 467.11, 467.12, 467.13: firearms offences, criminal organization offences, terrorist offences—have to run consecutive

s.718.3(4) Judge has discretion to decide to run a sentence concurrently or consecutive, but b/c of s.719(1) judge must state it if they want consecutive.

Code lists situations where it is acceptable to exercise this discretion.

What governs the discretion?Transaction Concept

Cazetta Que CA 2003

Multiple offences that are closely related in time and facts justify concurrent sentences

In this case, convicted of drug trafficking and possessing property from the proceeds of crime… CONSECUTIVE sentences justified b/c property bought with $ from other crimes as well, so not so closely related as to demand concurrent sentences.

McCarthy Nfld CA 2005

Multiple offences that are directed at different victims and years apart are not part of the same criminal adventure and thus mandate CONSECUTIVE sentences.

Consecutive sentences justified where accused assaulted two different girlfriends several years apart.

R v P(E.T.) Man CA 2002

Where there is a very close nexus and similar quality to the multiple offences, CONCURRENT sentences are warranted.

4 counts of assault CONCURRENT:- Same victim- Same type of behaviour (assault)

Despite:- Long period of time- Different weapons used

Al-Maliki BCCA 2005

Where the offences constitute separate transactions or criminal adventures, consecutive sentences should be imposed.

5 counts of counselling (hired undercover cop to have 5 people killed) CONSECUTIVE:- Separate potential victims

Despite:- Close connection in time and

place (asked to have them all killed at same time)

- Exact same type of behaviour for each.

R v W(B) Nfld CA 2006

Where offences are discrete in time or nature, they warrant consecutive sentences.

Multiple offences against offender’s daughters, various types of abuse over long period of time CONSECUTIVE:- Different victims- Gap in time between offences

Issue Where Rule NotesWhen will CA interfere?

Only where the global sentence is demonstrably unfit will a CA interfere with a trial judge’s determination of consecutive or concurrent sentences.

Principle of Totality

R v M(CA) “Totality” refers to the fact that the length of the cumulative sentence (i.e. where there are multiple sentences) must be proportional as well. This poses a challenge as each individual sentence while proportional may end up with a total sentence that is disproportional.

Thus proportionality, through the principle of totality, operates as a limit or restraint on cumulative sentences.

Hicks Nfld CA 2007

Look at the total of the sentences and determine whether, in light of the circumstances:

(a) it is substantially above the normal level of sentence fo the most serious of the individual offences involved, OR

(b) its effect is to impose on the offender a ‘crushing sentence’ not in keeping with their record and prospects.

If passes this test, then the global sentence may be adjusted.

Abrosimo BCCA 2007

It is only where consecutive sentences combine to create a global sentence that exceeds the overall culpability of the offender that the principle of totality operates to limit the global sentence.

If the offender’s overall culpability warrants a severe punishment, multiple lengthy consecutive sentences may stand.

Methodology in sentencing where there are multiple offences

R v S(AT) Nfld CA 2004

There are two different approaches:(1) Goodridge approach

- Determine a fit sentence for each, and then add together and adjust through the use of concurrent sentences to ensure they are not excessive in totality

(2) Hatch approach- Determine an appropriate total

sentence, then fix a sentence for each count to arrive at that total sentence

Goodridge methodology is preferable, because it is more honest in that each offence generate an appropriate sentence and the impact of individual sentences are preserved even if an appeal overturns one or more of the convictions.

Adams NSCA

Important to create a fit sentence for each offence before applying totality principle.

Mandatory Minimums and multiple offences

R v S(BR) BCCA 2007

Mandatory minimum offences, or offences required to be consecutive, do NOT oust the court’s ability to craft an overall appropriate sentence using the principles of proportionality through the principle of totality.

- Because won’t assume parliament intended to override the fundamental principle of proportionality w/o express language.

Youthful and/or First OffendersIssue Case Ratio NotesWhich Objectives?

General Rule

Ijam Ont CA 2007

Rehabilitation and individual deterrence should be the primary objectives.Generally, the objective of general deterrence should only play a small role or not be considered at all when sentencing youthful first offenders.

Error in principle to place undue weight on general deterrence for a youthful first offender.

Vandenbosch 2007 Man CA

“general deterrence should not normally dominate over the principle of rehabilition”

Girl caught smuggling drugs in prison, conditional sentence appropriate given age, first time etc.

Exception Thurairajah 2008 Ont Ca

However, where the crime is serious and violent, and particularly in sexual assaults, general deterrence is still an important objective despite the offender’s age.

Patterson Ont CA 2003

Offender was lawyer, abducted a 19 year old girl and forced her to prostitute herself. Even though first offence, the gravity of the crime far outweighed this factor so that general deterrence and denunciation became the primary objectives.

Maximum SentencesIssue Case Ratio NotesWhen is a maximum sentence appropriate?

Cheddesingh 2004 SCC

Maximum sentences are governed by the principle of proportionality as all sentences are. Where the offence is sufficiently grave and the offender sufficiently blameworthy, a maximum sentence is appropriate.

Should not use terms such as “stark horror” “worst offence” or “worst offender” to warrant a max penalty.

R v M(L) SCC 2008

Again, principle of proportionality determines when max sentences will be given out: only where the gravity of the crime and blameworthiness of the offender warrant it.

Max sentences are exceptional, but are “not reserved only for the worst crimes in the worst circumstances”

The principle of parity should not be given emphasis over proportionality in attempting to determine whether a max penalty is warranted.

i.e. don’t go looking for other cases where the max was/was not given.

MacArthur Ont CA 2004

The worst offender/ worst offence analysis is not appropriate when deciding whether to give a max sentence: it is also possible to imagine a worse crime. Rather it is an individualized process and must be based on the facts of the case.

Klair Ont CA 2004

Looking for blameworthiness shocking consequences of the crime not enough alone to warrant max sentence—was it deliberate is more important.

When the Crown Proceeds Summarily

R v L(RJ) BCSC 2006

It is permissible to consider cases where the crown chose to proceed by indictment but is a similar case in order to follow the principle of parity. However, the max summary sentence should not be handed down just because there are similar cases that proceeded by indictment that had higher sentences. The worst offender/ worst offence principle is not applicable to hybrid offences that proceed summarily, however the max summary sentence should be reserved for cases that fall within the worst category of summary conviction offences.

Credit for Pre-Sentence Custody Issue Case Ratio NotesPre-2010 Law

n/a Generally, before the amendments 2:1 credit was given. Judges had complete discretion

Rationale:(1) Compensate an accused for lack of parole

eligibility while in remand (or remission for prov. Equivalent)

(2) Compensate for the lack of rehabilitative or other programs.

Enhanced credit

Kravchov On CJ 3:1 credit granted for the particularly harsh conditions in Toronto Metro West detention centre.

Wust SCC 2000 Where the accused did not endure harsher circumstances in pre-trial custody, standard was 1.5:1

Post Feb 22nd 2010 Law

s. 719(3) Standard credit for pre-trial custody is 1:1

Amended by Truth in Sentencing Act (into force on February 22nd 2010)

s. 719(3.1) Judges have discretion to increase credit to a maximum of 1.5:1 “if the circumstances justify it”

Cannot be awarded to persons who are in pre-trial custody b/c of previous conviction (s.515(9.1)) or b/c of breach of an existing pre-trial release order or committed indictable offence while on pre-trial release (s.524(4) or (8)).

When does new law apply?

s.5 Truth and Sentencing Act

The act applies “only to persons charged after the day which the new subsections come into force”

NOT offences committed after but rather charged. Into force date Feb 22nd 2010

Issue: Does it apply to offences committed before Feb 22nd 2010 but charged after?

Ghostkeeper BCPC 2010

The new act does not apply to offences committed before Feb 22nd but charged after b/c of s.11(i) of the Charter.

Pahtayken ABPC 2011

Questions if reduction of pre-trial credit is a variation in ‘punishment’ for the purposes of s.11(i)

Preddy BCCA 2011

Obiter: new provisions apply to all charged after the 22nd.

But did not examine Charter issue nor interpret s.5 of Truth in Sentencing Act

Nilsson BCSC Claimed “bound” by the statement in Preddy to apply new rules to offence committed before but charged after into force date.

Enhanced Credit Under New LawIssue Where Ratio NotesMeaning of “Circumstances that Justify”

s. 719(3.1) Two lines of authority have emerged on this issue

Exceptional Circumstances Required

Bradbury BCCA 2013

Enactment of s.719(3) and (3.1) together clearly shows Parliament intended standard to be 1:1 unless exceptional circumstances in which case can give 1.5:1

Need to show something more than the normal loss of remission or parole eligibility b/c this is always happens.

Morris ONSC 2011

“circumstances that justify” cannot mean the universally applicable circumstances that were used to justify the old 2:1 standard, b/c that would have the effect of making the 1:1 default the exception.

Not Exceptional, just individual to the accused

Carvery NSCA 2012

The failure by parliament to use modifying language such as “exceptional” or “special” or “rare” means that they did not intend to limit discretion to give 1.5 credit to those types of situations.

Loss of remission are “circumstances” which justify 1.5:1 credit

Stonefish MBCA 2012

Remission/parole eligibility may justify 1.5:1 ratio.

Factors used to justify:(a) Lack of programming/ counselling(b) Number of lockdowns offender experienced(c) Time spent in solitary confinement (when for own protection)(d) Harsh circumstances in the remand facility—double bunking, overcrowding,

sleeping on floor, no visitors.(e) Post-trial delay not attributable to the accused—by the court, further time for

drafting reasons, pre-sentence or Gladue report or psychiatric assessment, multiple court appearances for the purpose of sentencing, the crown.

Curry ONCA 2013

Onerous conditions at Don Jail were “circumstances” that warrant 1.5:1 ratio.

Cluney Nfld 2013

Loss of remission acceptable “circumstances” for 1.5:1

Applicable To Current and Previous LawIssue Where Ratio NotesDenial of Credit Mills BCCA

1999Even though Code states “may” give credit, Court “must” consider time spent in custody.

Denial must be based on relevant considerations, and denunciation and post-offence conduct are not relevant. (confirmed in Neudorf and Calder Berg BCCA)

Orr BCCA 2008

Dangerousness of an offender is not a good reason to deny credit.

Stonefish MBCA

Question of enhanced credit is not related to the gravity of the offence or moral blameworthiness of the offender.

(a) Credit for pre-trial dentention is discretionary

(b) As a general rule, 1:1 is given unless there is a good reason for denying it

(c) Enhanced credit 1.5:1 may be given if the accused shows on a balance of probabilities that their individual circumstances justify it.

Dixon BCCA 2013

While it is an error in principle not to consider pre-trial custody at all, it is not an error in principle to refuse to give it.

Leblanc NBCA 2005

It is inappropriate to not award pre-trial credit where the maximum is imposed: otherwise, you would be exceeding the max (i.e. if max is ten years, they get ten and spent two years in pre-trial, they would actually serve 12)

However where max sentence is life, then it would be ok to deny pre-trial credit.

ALSO Dixon challenged this ratio, b/c of SCC decision in Mathieu—NOT PART OF SENTENCE… so there is doubt if this is good law

Is Pre-trial Credit a part of the sentence?

Mathieu SCC 2008

While it is a factor to be taken into account, it is not part of the sentence imposed.

Dixon BCCA 2013

Pre-sentence custody does not form part of a sentence

Mizen BCCA 2009

Pre-sentence custody does not form part of a sentence

Fice SCC 2005

Time spent in pre-trial custody is part of the total punishment imposed: it is not a mitigating factor.

Conditional Sentences

s.742.1(a) Conditional sentence only available where sentence is less than two years.Fice SCC 2005

Credit for pre-trial detention must be considered in calculating the ‘two year limit’. Conditional sentence is not available to an offender who would otherwise deserve a penitentiary term but for the pre-trial custody.

Availability of Probation

s.731 Probation order acceptable if offender sentenced to term not exceeding two years.Mathieu 2008 SCC

Credit for pre-trial custody should not be included when considering over-all sentence and determining if parole can be ordered.

Appellate court replaces conditional with custodial sentence

F(GC) ONCA 2004

Some credit is incorporated into the new custodial sentence based on the length of conditional sentence served.

Generally, 1:1 ratio, but no precise formula, consider:

- Conditions attached to original sentence

- Will hardship result- Success in rehabilitiation- Delay of hearing caused by

appeal—and who caused,

crown or def?- Fairness should govern- Where entire conditional

sentence served, impose custodial but stay enforcement

Strict Bail Conditions

Downes ONCA 2006

Strict bail conditions such as house arrest are different than pre-trial custody thus s.719 doesn’t apply.

Should be considered a relevant mitigating factor. No fixed formula for amount of credit given.

Panday ONCA 2007

Credit should not be given for strict conditions of pre-trial bail in order to reduce a MMS—only pre-trial custody can reduce a MMS

This is b/c it is just a mitigating factor, which cannot be used to over-ride Parliament’s MMS.

Junkert ONCA 2010

Just have to consider the mitigating factor of strict bail conditions, don’t have to award credit for it—respect trial judges decision to award/not award.

Irvine ONCA 2010

B/c considered as a mitigating factor, should not determine fit sentence and then deduct time for strict bail conditions. Thus is b/c strict bail conditions are not considered as “actually serving the sentence” which pre-trial custody is—and thus is why it is deducted after determining fit sentence.

Early Release and Parole Ineligibility

Parole Eligibility Dates: AdultsIssue Case/ Section Ratio NotesHigh Treason and 1st degree Murd 745(a) 25 years Subject to “faint hope”Second degree w previous murder or war crime involving intentional killing conviction

745(b) & 745(b.1) 25 years No faint hope (745.6(2))

Second degree 745(c) & 745.4 Between 10 and 25 years

Faint hope available if more than 15 imposed (745.6(1))

Life sentence for offences other than murder or high treason

745(d) “normal” as defined by the Corrections and Conditional Release Act: 7years

Fixed term sentences Corrections and Conditional Release Act

After one third of sentence has been served

Terrorism or criminal organization offence

743.6(1.1) & (1.2) Must give 10 years or ½ sentence whichever is less, unless judge satisfied that denunciation and deterrence would be adequately served with normal eligibility.

What happen on eligibility date? They may apply for parole and the parole board decides whether or not to release them, 40-45% of offenders are paroled between 1/3 and 2/3 of sentence. manson

Parole Eligibility Dates: Under 18Issue Case/ Section RatioSentenced as a youth for 1st degree murder

42(1)(q) Youth Criminal Justice Act

Max 10 years (6yrs custody 4 yrs community supervision)

Sentenced as a youth for 2nd degree murder

Max 7 yrs (4 years custody and 3 years community supervision)

Sentenced as an adult ss.61-81 Youth Criminal Justice Act

Can be sentenced as an adult for certain serious offences

Under 16, sentenced as adult for murder

s.745.1(a) Between 5 and 7 years

16-17 sentenced as an adult for 1st degree murder

745.1(b) 10 years

16-17 sentenced as an adult for 2nd degree murder

745.1(c) 7 years

Other Forms of Conditional ReleaseIssue Case/ Section Ratio NotesTemporary absence pass

Corrections and Conditional Release Act

1-3 days, with or without escort, generally for humanitarian purposes (i.e. death in family)Cannot get until 3 years before parole eligibility date for life sentences (746.1)

Day Parole Spend day out of custody at school, work, etc. and return to prison or half-way house at night.

746.1 Cannot get until 3 years before parole eligibility date for life sentencesAbolition of Early Parole Act

Cannot get until served 6 months or until 6 months before parole eligibility whichever is longer.

Release at 1/3 Likelihood of committing any offence is now grounds for denying full parole at 1/3Mandatory Release Under Supervision

Corrections and Conditional Release Act

If an offender has not been paroled by 2/3rds of their sentence, they shall be released on supervision

However if there is a serious risk that the offender will commit a serious offence while on mandatory release, the prison official will refer them to the Parole Board. They will hold a hearing and may

decide not to release until expiry of full sentence.

Delaying Parole: HistoricallyIssue Case/

SectionRatio Notes

Before CCC provisions

R v. M(CA) SCC 1996

Considerations of parole ineligibility are irrelevant in determining the fitness of a sentence, courts should not base their decision on what sentence to give on when the offender will be eligible for parole

Zinck SCC 2003

Before the amendments, eligibility for parole was in the sole mandate of the national parole board and was not in the realm of a sentencing judge’s decision.

Delaying Parole: Non-MurderIssue Case/ Section Ratio NotesGenerally

743.6 On or after Nov 1, 1992(1) Sentence of imprisonment of two years or more (including life if life is not the min)(2) For offence set out in schedule I or II of the Act(3) Prosecuted by way of indictment

The Court MAY order the portion of the sentence must be served before the offender may be released on full parole is ONE HALF the sentence or TEN YEARS which every is LESS

IF:(1) Having regard to the circumstances of the offence and(2) Character and circumstances of the offender

The court is satisfied that:(3) Expression of society’s denunciation of the offence or objective of specific/gen

deterrence requires it.

Test Zinck SCC 2003

When deciding whether to exercise discretion under s.743.6, a sentencing judge must consider:

(1) the appropriate punishment for the crime (normal determination of fit sentence)

(2) again consider sentencing objectives & principles: Priority is given to both factors of general/ spec deterrence and denunciation. Is additional punishment of delayed parole ineligibility required?

Prosecution bears burden at the 2nd stage to prove it is required.

Should only be invoked on the basis of demonstrated need, not ordinarily.

Duty of Fairness: Offender must be informed when they are at risk of parole ineligibility so they can make submissions on it, judge must give reasons they invoke it.

Cheddesingh SCC 2004

Where sentence is life (not a min) parole ineligibility is normally 7 years. If judge wants to increase, can go up to 10yrs but has discretion to go somewhere in between.

This case was manslaughter, ordered 8 years—CA changed it to 10 b/c said wording of code required 10 but SCC said no and restored trial judge.

Delaying Parole: Second Degree MurderGeneral Rule 745(c) Parole ineligibility for second degree murder is 10 years.

745.2 Jury may recommend a longer time period for parole ineligibility745.4 Where an offender is over 16 and has no previous murder convictions, the judge may

increase parole ineligibility from 10 years to any number of years up to a max of 25

Discretion is exercised considering:(1) Jury recommendation if any(2) character of the offender

(3) nature of the offence(4) circumstances surrounding the commission of the offence

Jury recommends

Mafi 2000 SCCA?

Must not give too much weight to a jury recommendation b/c they don’t know much about the law of sentencing

Van Osselaer BCCA 2004

Trial judge must consider jury’s recommendation but in the end the question is always: is the sentence fit? As long as the parole ineligibility is within the acceptable range, appellate court must give deference

Jury doesn’t recommend

Cerra BCCA 2004

Wording of 745.2 makes it clear that lack of recommendation is irrelevant and should be given no weight.

Character of accused

Reid ONCA 2003

Need to consider offender’s rehabilitative prospects, age, previous gainful employment etc (when considering their character) in order to determine appropriate parole ineligibility.

Decreased TJs 15 yrs to 12 b/c of these factors.

Nature of Offence

Kianipour BCCA 2003

Consider mitigating factors, can also think of seriousness of the offence—was it closer to first degree or closer to manslaughter?

20yr ineligibility given for accused who stabbed his wife, father-in-law and mother-in-law to death in front of his son b/c very near 1st degree end of the scale.

Circumstances Sodhi ONCA 2003

14yrs appropriate considering:- domestic nature of crime (killed his wife)- brutality of crime- accused’s attempt to cover it up- persistent efforts to create suspicion that someone else had done the murder

Over-all Range Nash 2009 NBCA

General guidance on range based on case-law:- Those offenders who have no previous criminal record involving violent criminal

acts are less likely to see the period of parole ineligibility extended beyond the 10 to 15 year range.

- Those offenders with a criminal record that involve violence or other serious criminal conduct are more likely to have the period of ineligibility extended to somewhere in the vicinity of 15 to 20 years.

- In cases involving multiple murders or extreme brutality committed by offenders with a violent past the period of parole ineligibility may exceed 20 years.

But still, you have to factor in other considerations such as age and whether the murder was committed during the commission of another crime.

Exception Woods BCCA 2003

Where offender has a rapidly deteriorating terminal illness, not appropriate to extend parole inelibility beyond the 10yrs.

Offender diagnosed with ALS after sentenced: originally given 15yrs, but due to diagnosis CA reduced to 10.

Prior Conviction of Murder

745(b) Where previously convicted of murder, upon conviction of 2nd degree no parole until 25 years

Falkner s.745(b) is constitutional as it has a valid purpose. Not invalid b/c it doesn’t apply to all multiple murders—only applied to those previous conviction.

Victim is Undercover Cop

CeCe ONCA 2004

Where victim is an undercover cop, even if the offender didn’t know this, it is appropriate to increase parole ineligibility

Strong need for denunciation where victim is a police officer

Pre-trial custody and Strict Bail

Toor BCCA 2005

Pre-trial spent in custody and strict bail conditions are not to be considered when determining parole ineligibility

Gladue Factors Jensen Have to consider Gladue factors when determining parole ineligibility no matter how serious the crime.

Remember Gladue doesn’t mandate better treatment, just mandates a different method for deciding fitness.

Multiple Murder 745.51 A judge “may” order parole ineligibility period for a second murder be made

From Dec 2nd 2011… so potentially two second degree murder convictions

consecutive to the first murder could result in no parole for 50 years.

Faint HopeIssue Case/ Section Ratio NotesGenerally 745.6 Offender may apply for a reduction in parole ineligibility periods which are longer than 15

years.Can’t Apply if:

An Act to Amend the Criminal Code

No longer available for murders committed on or after the date of coming into force: Dec 2nd 2011

745.6(2) If convicted of more than one murder whether committed separately or together745.6(1) Before serving 15 years of

sentenceTime spent in custody before conviction counts towards determining time served (s.746)

Process 745.6 First apply in writing to the Chief Justice of the province

Changed: only have 3months to apply once you’ve served 15 years. If you don’t have to wait another 5 years. Unsuccessful applicants will have to wait a minimum of five years before than can re-apply and will only have 3 months in which to do so again.

745.63(1) Chief justice must consider criteria and ask if there is a “reasonable prospect” of success

Changed to “substantial likelihood” on Dec 2 2011

745.61(5) If yes, then Chief Justice designates a Superior Court judge to empanel a jury to hear the application

745.63 Full hearing before a jury will be held745.63(3) Jury must be unanimous that the offender’s parole ineligibility should be reduced by some

amount745.63(5) However jury doesn’t have to be unanimous on how much—the amount just needs 2/3

approval.

Aggravating/Mitigating FactorsIssue Where Ratio NotesGenerally

718.2(a) The Court should increase or reduce a sentence based up on “any relevant aggravating or mitigating circumstances relating to the offence or the offender”

Seven aggravating factors and no mitigating factors are listed.

Mitigating FactorsIssue Where Ratio NotesFirst Time Offender

See section under “rules”

Prior Good Character

Manson 132 - may be relevant to "good rehabilitation prospects"- may point to the fact that the offence is "totally out of character", a "one time thing" that will not reoccur [therefore no need for individual deterrence]

Guilty Plea Manson 134 - mitigating because it can imply remorse and "taking responsibility" [objective 718(f)]

- it can save witnesses, esp. complainant, the trauma of testifying

- Saving CJS "time and money" is not an official rationale for giving lighter sentence but it is an actual reality

- not guilty plea [demanding right to trial] can never be an aggravating factor

- but since G.P. is a mitigating factor, there is often a big difference between sentence after a guilty plea and sentence after a trial [England – suggestion of 25%]

Daya ONCA 2007

- a reduction of one-third of the sentence for a plea of guilty was excessive. The Court further stated that credit for a guilty plea will vary with the circumstances of each case (e.g., timing, strength of evidence, vulnerability of witnesses, etc.).

- the difference can be especially big when the Crown offers (charge or sentencing concessions) if, and only if, the Accused pleads guilty.

Drug or Alcohol Impairment

Manson 133-35

- can be mitigating where it shows the offence was spontaneous rather than planned

however a history of violence while impaired may be aggravating due to the offender's failure to deal with his problem, shows offender is continuing danger to society

Gambling Addiction

Horvath SKCA 1997

treated addiction as a mitigating factor, saying her offences were the product of a distorted mind – she lacked normal control

Harding SKCA 2006

Where gambling addiction is of a lesser order, i.e. not the worst case, not a mitigating factor

Alberta Gambling addiction rejected as mitigating factor: McIvor 96, Holmes 99, McTighe 05

Good Employment Record

Manson 135 - The courts assume that a good employment record points to good prospects for rehabilitation

- prosecutors/courts assume unemployed persons commit more crimes than the employed

But be careful not to treat unemployment as an aggravating factor or as a sign that the offender is necessarily anti-social

[Wise to get your client out looking for a job before he/she is sentenced.]

Issue Where Ratio NotesIndirect Consequences suffered by Offender

(for an ex see deportation below)

Manson 136-7

The significance of indirect consequences varies with the type of consequence and its relationship to the offender's offenceExamples:

- Charged with Impaired Driving/Dangerous Driving Causing Death/Bodily Harm, but was seriously injured in the accident [can be seen as part of the punishment]

- Convicted of offence unrelated to job, but lose job or professional licence as a consequence (lawyer disbarred for possession of child pornography).

- But where the adverse consequence is directly linked to the offence, then the consequence is not a mitigating factor

- Can't complaint that you’re an orphan when you kill your parents

- Can't complain that you are disbarred as a lawyer when you cheat your clients, or fired as a teacher when you physically or sexually abuse your students

Post-Offence Rehab Efforts

Manson 138 shows good prospects for rehabilitation

Unrelated Meritorious Conduct

Manson 138-9

shows something positive about the offender's character

Acts of Restitution and Compensation

Manson 139 shows remorse, acknowledgement of wrong and efforts to put the wrong right—good candidate for rehab

Provocation and Duress

Manson 139-41

- when an accused acts out of duress or provocation it reduces his/her moral blameworthiness b/c it is more spontaneous and not deliberate

- if the provocation or duress does not meet the requirements as substantive defences to the offence, they may still be relevant as mitigating factors at sentencing

Charter Breaches Nasogaluak SCC 2010

Where Charter breaches are relevant to a fit sentence, they should be used as mitigating factors—this is b/c to be fit a sentence must align with the constitution. So no need to resort to special Charter remedies.

s.24(1) (stay of proceedings or reduction below MMS) should generally not be used as a remedy where the charter breach is relevant to the sentence—but CAN be in EXCEPTIONAL circumstances.

TranONCA 2010

Charter breach of ss.7 & 12 so egregious that sentence reduction inadequate: s.24(1) stay of proceedings given.

Criminal Record Manson 151 Where there has been more than 5 years since the last conviction then it ought not to be considered: gap principle

Where someone is in the middle of a criminal career and has a change of heart: intermediate recidivist

Test Case Given the costs, rigours and uncertainties of protracted litigation, there can be a mitigating effect for an accused" involved in a test case which goes on appeal because of a novel or ambiguous aspect to the case.

HamiltonONCA 2004

TJ treated the case as a “test case” and gave mitigation for long protracted proceedings, but CA held wasn’t a true test case so no mitigation warranted.

Issue Where Ratio NotesDisadvantaged Background

Sackanay ONCA 2000

- poverty, abuse, family dysfunction can help to explain – although not justify – some criminal activity

- can lessen blameworthiness and mitigate sentence

Borde ONCA 2003

-however, as the offence increases in seriousness and the need for denunciation, deterrence and separation increase, the mitigating effect of "disadvantage" will lessen or disappear

Mistaken Belief Sagoe ONCA 1998

Mistaken belief as to the nature of the illicit drug is not a substantive law defence BUT it should be a mitigating factor, b/c the accused thought they were engaging in less serious behaviour and thus is less blameworthy.

Single Parent Status

Bunn SCC 2000

The fact that the offender is a sole parent or caregiver can operate as a mitigating factor

However can’t keep a person out of jail or convert a prison sentence to a conditional sentence where the seriousness calls for prison

Holub ONCA 2002

Refused to convert a prison sentence to a conditional sentence on the basis of single parent status—just a mitigating factor can’t change a custodial to conditional.

Hamilton ONCA 2004

Single parent status was not sufficient to warrant a conditional sentence instead of a custodial.

Spencer ONCA 2004

three dependent children doesn’t reduce personal culpability or the need for deterrence/denunciation. However in society’s interest to preserve family.

Where crime is sufficiently grave, this factor cannot do much… other objectives outweigh interests of children.

Adverse Publicity Ewanchuk ABCA 2002

Not mitigating where the offender specifically seeks out the media attention

Can be mitigating if publicity is out of proportion to what is normal and there is evidence this has a negative impact on the offender.

Offender’s Disability

Andrews MBCA 2004

Offender’s terminal illness is a factor that can be taken into account in setting the type or length of a sentence

R v B(LT) ABCA 2007

A sentence of custody where appropriate should be imposed UNLESSS the correctional facilities cannot accommodate the offender’s special needs. But you can also consider the disproportional impact of a custodial sentence on a person with disabilities when deciding the appropriate length.

Cody PEI CA 2007

An offender’s who had a very fragile state of mental health that would likely be significantly damaged by a return to prison was a factor that was considered in imposing a conditional sentence.

Harper YTTC 2009

Severe FASD significantly diminished his personal responsibility and was therefore a major mitigating factor.

Cooperation with the police

H(CN) ONCA 2002

To encourage offenders to give info, cooperation will be a mitigating factor if the offender has genuinely co-operated. The information given just must be possible of significantly assisting authorities doesn’t have to happen in fact.

False disclosure will not be mitigating.

The more useful and relevant the info, the more the mitigation.

Deportation Immigration Act amended in June 2013 so that now any non-citizen who is sentenced to more than 6 months OR if they are convicted of a crime with a max punishment of 10 years or more regardless of actual sentence = deported.

Old rule was just 2 years or more in prison = deported.

Issue Where Ratio NotesCases below, this collateral consequence was not considered by TJ… question becomes-- does this failure to consider warrant appellant court interference?Pham 2013 SCC 15

Para 20 the Court said that a one day adjustment is NOT automatic just to avoid the collateral consequence of deportation. Seems to minimize the consequence. Has been applied lately as only allowing courts to trim a small amount of time off the sentence.

To ABCA 2004

Deportation status was not a sufficient mitigating factor to reduce 3 ½ to 2 yrs less a day—sentence as given was fit.

Spencer ONCA 2004

The fact that the accused may be deported does not justify the imposition of a sentence that is otherwise unfit.

Mai BCCA 2006

Sufficient mitigating factor to reduce a 2 year sentence to 2 years less a day

Was overlooked by counsel or judge would have likely just given this sentence in the first place

Curry ONCA 2005

Reduced 2 ½ year to 2 years less a day b/c accused had lived in Canada since he was one year old

MMS Nasogaluak SCC 2010

Mitigating factors cannot normally be used to go below a mandatory minimum penalty.

Strict Bail Conditions

See conseq/concurrent section: mitigating factor

Aggravating FactorsIssue Case/ Section Ratio NoteBias or Hate 718.2(a)(i) Race, national or ethnic origin, language, colour, religion, sex age, mental or

physical disability, sexual orientation or any other similar factorAbuse of Spouse 718.2(a)(ii)Abuse of person under 18

718.2(a)(ii.1)

Abuse of position of trust or authority

718.2(a)(iii)

Impact on the victim

718.2(a)(iii.1) Significant impact considering their age and other personal circumstances, including their health and financial situation

Mostly to protect seniors from fraud

Organized crime 718.2(a)(iv) Benefit of, at direction of or in association withTerrorist offence 718.2(a)(v )Offence-Specific 348.1 B & E of occupied dwelling is aggravating if:

(a) they knew or were reckless that it was occupied

(b) they used violence or threats of violence

Added 2002

255.1 Where an offender’s blood alcohol level is over .16 it is an aggravating factor for any motor vehicle offences

Added 1999

264 Committing criminal harassment while subject to a peace bond is an aggravating factor

Added 1997

380.1 4 circumstances are aggravating for the offence of fraud:(1) fraud exceeding 1 million(2) adverse effect or potential effect on the

Added 2004

Canadian economy or financial market(3) large number of victims(4) offender took advantage of high regard in

community163.1 (4.3) Aggravating to commit child porn offences “with intent to make a profit”718.21 Sentencing corporations and organizations- 10 factors the court must take into

account10(2) CDSA The following are aggravating factors for drug offences:

(1) use of a weapon(2) violence or threat of violence(3) trafficking or possession for the purposes of trafficking in or near a school or

a public place usually frequented by persons under 18(4) trafficking to a person under 18(5) previous conviction for a “designated drug offence” (even just possession)

use or involvement of a person under 18 to commit the designated drug offencePrevious Conviction

Usually aggravating b/c:(1) offender loses the mitigation of first offender

status(2) shows that greater specific deterrence

and/or denunciation is needed

But may not be aggravating if:(1) offences are quite

dissimiliar(2) previous offence is

quite old (more than 5 yrs)

Actual or Threatened violence/ use of a weaponCruelty or brutalityOffence committed while serving a previous sentence on probation/ parole/ statutory releaseMultiple victims or multiple incidencesGroup or gang activityThreats or intimidation by offender to complainants or witnesses to not report crimes nor to testifySubstantial economic lossPlanning and organizationVulnerability of the victimSpecial status of certain victims

Phillips ONCA 1999

If the victim is a police officer, greater denunciation is needed and therefore this is aggravating

Deliberate risk taking

More blameworthy than something that is just negligent or accidental

Pleading Not Guilty

Kozy ONCA 1990

CANNOT be aggravating. Allowed to present a full and vigorous offence.

Just lose the mitigating of pleading guilty

Not Expressing Remorse

Vu BCCA 2003 CANNOT be aggravating UNLESS it falls into narrow exception where it demonstrates a substantial likelihood of future dangerousness.

Otherwise, just lose the mitigating of showing remorse.

Failure to co-operate

Winsten ONCA 1999

CANNOT be aggravating Again you just lose the potential for mitigation.

Sentencing Hearings

Procedure and Evidence

IntroductionIssue Section NotesTiming of sentence

720 Judge “shall as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed”

Delay 720(2) Court can delay sentence with the consent of AG and offender in order for offender to take part in an “approved” treatment program… usual drug or mental health courts use this.

PSR 721 Judge has power to order a PSR (prepared by probation officer)VIS 721 Content and procedure for VISEvidence 723 Prosecutor and offender allowed to make submission and call relevant evidence, including

hearsay. Judge can also call evidence on their own motion.Disputed facts 724 Manner of establishing and proving disputed factsAllocution 726 Requires a court to ask the offender if they have anything to say before determining the

sentencePoint of Allocution

726.1 Court must consider any relevant information before determining the sentence

Previous Convictions

727 What is needed to prove them

Drug Analysis 729 What is needed to prove them

ProceedingsIssue Case/ Section NotesNature of Proceedings

Gardiner SCC 1982

- there is a very variety of sources of information and types of evidence- this is b/c sentencing judge needs fullest possible information upon which to craft

a fit sentence for the specific offender (not just offence)- therefore sentencing hearings tend to be more informal, don’t have the restrictive

rules of evidence- Hearsay may be used, but to maintain procedural fairness, it must be credible and

trustworthy.723(1) and (2) - Largely adversarial, reflected in these sections as both Crown and Defence are

expected to make submission and call evidence.723(3) and (4) - Inquisitorial aspects as well

- Reflected in these sections as judge can call evidence of their own motion- And compel witnesses where in the interest of justice

Role of the Judge

Hunter ABQB 1997

- Open ended inquiries not allowed… can only ask about things that relate solely to relevant social conditions existing on reserve.

- Sentencing judge had attempted to inquire into social conditions, alleged corruption and financial management on reserve = struck down.

Gladue SCC 1999

- But judge is required to obtain information regarding an offender as an aboriginal person under s.718.2(e)

Hamilton and Mason ONCA 2004

- TJ criticized for attempting to incorporate broader social problems of race and gender bias when sentencing two poor black women for drug trafficking.

Proof: Aggravating

n/a - Anything which tends to make the offence graver will be aggravating724(3)(e) - Crown bears burden of proving beyond a reasonable doubt all aggravating facts in

regard to sentencing.

Poorman SKCA 1991

- Where Ccrown does not call evidence or fails to prove the fact, the judge proceeds on the assumption that the fact or circumstance does not exist.

Proof: Mitigating

n/a - Anything which relates to the offenders character which lessens their responsibility is mitigating

724(3)(d) - Offender bears burden of proving on a balance of probabilities all mitigating facts.Proof Over-All Holt - Generally, offender entitled to be sentenced on the most favourable version of

the facts unless prosecutor proves a more serious version.Boulet - However the most favourable version of the facts must have an air of reality

before the sentencing judge can proceed based on that version of the facts.Facts n/a - Three ways which the accused is found guilty changes the way facts are

determined:(1) The accused pleads guilty(2) The accused is found guilty after trial by judge along(3) The accused is found guilty after trial by judge and jury

Guilty Plea n/a - Only the facts that are implicitly admitted as the essential elements of the offence are established

- All other facts are presented through counsel’s submissions and calling evidence, judge determines which are accepted based on whether burden of proof met.

Trial: Judge Alone

n/a - Judge heard all evidence, and has evidentiary basis for many facts.- Anything not presented at trial will be introduced by submissions or proven by

evidence if disputedTrial: Judge and Jury

n/a - Essential elements of offence are proven- But what about other facts relevant to sentencing? Jury gives no reasons

724(2) (a) Judge shall accept all facts, express or implied, that are essential to the jury’s verdict.

(b) Judge may decide on the facts presented at trial not essential to verdict, and hear evidence by the parties about those facts.

Gauthier BCCA 1996

- Where facts are aggravating, judge will have be convinced beyond a reasonable doubt

Braun - Neither Crown nor Defence entitled to re-litigate issues litigated at trial by introducing evidence which would contradict or be inconsistent with that issue which was litigated.

Brown SCC 1991

- Judge must impose sentence on facts which are consistent with jury’s verdict.- For example, if jury rejects dangerous driving causing death and instead goes with

lesser charge of dangerous driving, must be assumed jury was not convinced beyond a reasonable doubt that the dangerous driving was the legal cause of death. Therefore judge can’t sentence based on the fact that offender caused the death.

Sources of Offender Information

Offender’s Right to SpeakIssue Case/

SectionNotes

Historically (pre-1996)

n/a Right of allocution given: Do you have anything to say before sentence is passed upon you?- Important chance to seek benefit of the clergy or seek mercy for other reasons- Also most sentences were death sentences so doubly important- First enacted in Canada in 1892 in the CCC

688 Stated that judge shall ask the accused if they have anything to say, but failure to comply does not affect the validity of the proceedings.

Dennison NBCA 1990

Inadvertent omission of the right to speak will not affect the validity of the sentencing hearing (b/c Appeal Court has opportunity to correct this error)—but a deliberate denial will violate s. 7 so Court can lower sentence on appeal.

After 1996 726 Replaces 688, Court shall ask if accused has anything to say before passing sentence.Senek MBCA 1998

Failure to comply with 726 will not affect validity where there is no evidence that offender had anything of relevance to add to the submissions of their counsel.i.e. where counsel made regret of offender clear, nothing added by offender personally expressing regret.

Izard NSCA 1999

However where the accused asserts a disputed fact during their right to speak, the fact should be proved in the ordinary way under s.723… Crown has to be given opportunity to respond.

Pre-Sentence ReportsIssue Case/

SectionNotes

Order 721 Judge has power to order, although crown and defence will frequently request the court to order one.Prepared by the probation department

Which Offenders?

721(1) PSR can be order for all offenders except for “organizations”

Types of Offences

721(1) and (2)

LG in C can make regulations respecting the types of offences that the Court may request a PSR for (However has never been done, could be unconstitutional)

Disclosure 721(5) Once filed, the Court shall as soon as practicable, give to the offender or counsel of the offender and to the prosecutor.

Content 721(3) Wherever possible PSR must contain:(a) Offender’s age, maturity, character, behaviour, attitude and willingness to make

amends(b) Previous convictions(c) Previous use of diversion(d) Any regs made by the provinces as to content and form under s.721(2)

Donovan NBCA 2004

PSR not to be used as investigative arm of the law- No fact finding- No questions about the offence

Confined to:- Background, family, education, employment record, physical and mental health,

associates, social activities, potential and motivation of the personDisputed Facts

Benson BCCA 1951

Crown or accused (more likely) given opportunity to state their disagreement, if any disputed facts are considered relevant other side must prove in normal way. If they do not prove in the normal way, accused is sentenced as if those facts were not present.

Victim Impact StatementsIssue Case/ Section NotesWho is a Victim?

722(4) (a) the person to whom harm was done or who suffered physical or emotional loss from the offence

(b) the spouse, partner, relative, guardian or dependant of a victim under (a) who is dead, ill or incapable of making a VIS

McDonough On SCJ 2006

The “victim” in s.722 includes any relative. Statements of friends of the deceased are also admissible with some reservation.

Role of Victim Gabriel On SCJ 1999

Victim is not a party to the proceeding, but does have statutory ability to provide information to the sentencing judge.

Point of it 722(1) Court shall consider any statement by a victim of the offence…which describes the harm done or the loss suffered by the victim arising out of the commission of the offence.

Preparation 722(2) (a) Prepared in writing according to the procedures and form set out by the LG in C

(b) Filed with the CourtVictim Participation

722(2.1) Court shall allow victim to read their prepared statement out loud in Court.

Other Evidence 7222(3) Court may consider any other evidence concerning any victim of the offenceDisclosure 722.1 Court gives copy of VIS to offender or their counsel and the prosecutor as soon as

practicable.Lonegren BCCA 2011

BC practice is for Crown counsel to arrange for VIS and file with court, giving copy to defence counsel. Often Crown will have before prelim inquiry or trial, in which case Stinchecomb applies and Crown must disclose upon VIS receipt—not wait until sentencing.

McDonough On SCJ 206

Crown must provide statements to defence counsel in advance of sentencing submissions to permit opportunity for defence to challenge their admissibility.

Advise Victims of their right

722.2 Court shall inquire whether victims have been advised of their right to file a VIS. If not, Court can adjourn to permit victim to do so.

Content Gabriel Limited to the consequences of the offence on the victim. Not for the purposes of revenge, only relevant info about loss and harm to the victim. No criticisms of the offender, statements about the facts or recommended punishments.

Cook QCCA 2009

If VIS contains improper information that is not vetted by the prosecutor or the judge, CA may be prepared to assume the sentencing judge was aware of what was improper content and took no account of it.

724(3) If a VIS raises a disputed fact, it must be established in the normal way.Revet SKCA 2010

If defence counsel fails to object to improper information, may not be entitled to raise that issue on appeal.

McDonough On SCJ 2006

Excluded Content:(1) Criticism of the offender, b/c this can tilt the adversarial system(2) Offender bashing, vengeance plays no role in sentencing(3) Assertations as to the facts of the offence(4) Recommendation of the severity of the punishment(5) Statements addressed to the offender, not an opportunity to confront

offender.Must comply with s.722.

Psychiatric/Medical ReportsIssue Case/

SectionNotes

General Power: Psychiatric Remands 672.11 Authorizes the Court to order a psychiatric remand and assessment for the purposes of fitness or a mental disorder defence at trial, or disposition of a person found unfit or NCRMD.

Can judge order a psychiatric remand for sentencing?

Lenart ONCA 1998

No

Getliffe-Grant BCSC 2006

No cannot use power under s.723(3) to “order production of evidence” nor under s.721(4) does the judge have the power to compel a psychiatric evaluation. These sections are too general to allow such a personally invasive test to be ordered.

Blackwell BCSC 2007

Refused to follow Getliffe-Grant. Instead: Does have the power to order a psychiatric assessment of non-consenting offender for sentencing purposes b/c this could be valuable for crafting a fit sentence. However offender can always refuse to participate and exercise their right to silence.

Can judge order a psychiatric evaluation for civil commitment purposes under the provincial Mental Health Act to use that info for sentencing?

Lenart ONCA 1998

Yes—however seems wrong so probably follow the dissenting judgment instead—unconstitutional, how can prov legislation be used for criminal purposes?

Leach On CJ 2007

However offender who is subjected to psychiatric evaluation should be advised of their right to remain silent.

Blackwell BCSC 2007

BC and AB mental health statutes do not have such a wide provision of psychiatric remand like in the Ontario statute, so can’t apply Lenart in BC.

Can a fitness/NCRMD psychiatric assessment and evaluation report be introduced by Crown at sentencing hearing?

672.21(2) The “statements by an accused” during a 672.11 assessment are “protected” which means inadmissible in other proceedings w/o the accused’s consent.

R v DK ONSC 1999

Any expert opinions arising out of 672.11 assessment should not be admissible at sentencing.

Ordering Psychiatric Eval to help Crown with dangerous offender application?

Leach OnCJ 2007

Court has no authority to order a non-consensual psychiatric evaluation for the purposes of helping the Crown to decide whether to make a dangerous offender application under s.752.1.

This is b/c would essentially be the Court assisting the Crown, and the consequences and dangers of self-incrimination are palpable.

Judicial NoticeIssue Case/

SectionNotes

Test Find SCC 2001

Have to distinguish between adjudicative facts and social framework facts. Strict Test:(1) The fact is so notorious or generally accepted as not to be open to debate among

reasonable persons, or(2) The fact is capable of immediate and accurate demonstration by resort to readily

accessible sources of indisputable accuracyPurpose of Judicial Notice

Spence SCC 2005

Social framework facts are broad and general facts about social, economic and cultural context which may assist in deciding other factual issues. Should not be used expansively… preferable for social science evidence to be presented through experts.

Prevalence or Alleged Rise in

Manson pg 204

Judicial Notice should not be taken of the prevalence or alleged rise of crime in a particular community; those assertions should be proven

Crime

Joint SubmissionsIssue Case/

SectionNotes

General Law Sinclair MBCA 2004

(1) Decision lies with the court, but the proposed sentence should be given serious consideration

(2) Sentencing judge should depart ONLY where there are cogent reasons for doing so.(3) To determine if there are cogent reasons, consider: all the circumstances underlying

the joint submissions i.e. plea bargain, evidentiary considerations, systemic pressures—the more these things are there the more weight should be given to joint submission

(4) Judge should inform counsel during hearing if they are considering departing to allow for submissions to be made justifying the proposal

(5) Must provide clear and cogent reasons for deaparting, must be more than an opinion that the sentence is not enough—fact that crime could attract higher sentence not enough. Proposed sentence must meet normal standard considering principles, and agg. + mit factors etc.

McKay MBCA 2004

- Where the joint submissions is not the result of a “genuine plea bargain” then not as much weight needs to be given to it.

- However where Crown’s case has a flaw or weakness and the accused gives up right to a trial in exchange for joint submission, there is much more weight on this.

- Where accused’s decision to forego right to trial happens against the backdrop of heavily burdened court and lengthy wait times, this also gets weight b/c they are essentially helping the justice system… it is a true quid pro quo.

Oake NLCA 2010

Joint submissions are an important part of how the justice system functions, therefore should not be rejected where there is a true quid pro quo.

Druken Nfld CA

There is a high threshold for rejecting joint submissions—unless contrary to the public interest and bring admin of justice into disrepute, they should stand.- Intended to foster confidence in the accused who has given up their right to a trial- Cooperative atmosphere at criminal law bar, help shorten criminal law process which

has direct financial benefit to society- But this would all fail if accused was not assured that the deal would likely be

acceptedCrown Suggestions

Koenders MBCA 2004

A sentencing judge may exceed sentences proposed by the Crown so long as the departure is not excessive and does not constitute an error in principle.

Donovan NBCA 2004

Generally, the Court will not exceed the sentencing recommendations of experienced Counsel. However, where defence and Crown are recommending sentences that are within six months of each other, this does not constitute a joint submission. Court under no obligation to adopt it even if it was.

Lengthy AdjournmentsIssue Case/

SectionNotes

General 720 A sentence should be imposed as soon as practicable after a finding of guiltException 720(2) Adjournments allowed where authorized by AG and offender so that offender can take part in

approved treatment program under the supervision of the court

Restorative JusticeReadings: CP 142- 153, Manson 371-377

It is an innovative and alternative way of viewing, and responding to, crime and conflict. Van Ness suggested that RJ is based on 3 foundational principles:

1. Crime results in harm to victims, offenders and communities (3 parties)2. Not only government, but vics, offenders and communities should be involved in criminal justice process3. in promoting justice, the gov should be responsible for preserving order – community for establishing peace

RJ philosophy or framework: Pirie would love this shit. i. views crime as a violation of victim and community – rather than the state.

ii. Attempts to make offenders accountable to the parties violated: vics and communityiii. Allows for a response to crime which involves active participation of all partiesiv. Tailor that response to restores the relationship and repair harmv. Measures accountability by the assumption of responsibility …and action taken to repair harm

vi. Allows victims a central role in the process

Restorative justice has a healing component for the victim and the offender and the community. See CP pg 137

Law commission describes 3 main types of restorative justice: A. Victim offender reconciliation programs:

come together with a trained facilitator to discuss the conflict. Victims can have the “why me” question answered, and wrongdoers are in a position to see the consequences of their actions and make reparations.

i. Not appropriate if either is unable or unwilling to participateii. Or when offender has not been identified

For such circumstances similar victims are brought together with perpetrators of a similar crime. They both can gain insight from this experience, in spite of the lack of actual connection.

B. Family or community group conferences: similar to above, but for groups. Family, professionals (teachers etc), on each side (vic and offender). These conferences rely heavily upon the ability of the group to invoke shame from the wrongdoer. (like an intervention!) aim to show disproval for the act, not the actor.

C. Sentencing Circle: RJ emphasizes physical economic, emotional, psychological and spiritual elements of conflict. Sentencing circles operate in many aboriginal communities in Canada. They allow victims, offenders, elders etc, to discuss the conflict and ways to deal with the aftermath.

In sentencing circles , the victim, offender, family, and community members meet with a judge, lawyers, police, and others to recommend to the judge what type of sentence an offender should receive. The victim and the community have the opportunity to express themselves to the offender, and may also take part in developing and implementing a plan relating to the offender's sentence. Healing circles are ceremonies intended to bring conflict to a close, allow the participants to express their

feelings, and indicate that the offender and victim have undergone personal healing. Community-assisted hearings , which are sometimes called releasing circles, are a type of National Parole

Board hearing that is held in an Aboriginal community rather than in a holding institution. These hearings are an opportunity for the justice system, the community, and the offender to be responsible for the successful reintegration of an offender back into the community.

RJ can happen at any point in the process. CP on pg 141 chart comparing Trad J to RJ. In most cases RJ is used for relatively minor crimes.

Restorative Justice in Canada – A Consultation Paper. DoJ – May 2000 (4 pg summary)

- RJ not a new idea: focus on healing relationships and repairing damage caused by crime to individuals and communities

- How do we balance the needs of victims, communities, and offenders and ensure that everyone's rights are respected? What is the most effective relationship between government and community in developing these programs? How can we ensure that restorative processes do not end up restoring unequal or even dangerous situations?

- Over the past two decades, the Canadian public has become increasingly interested in alternative ways of resolving conflict and preventing crime.

PART I: RESTORATIVE JUSTICE - AN OVERVIEW Crime is first of all a violation of relationships among people, not just an act against the state. Crime results in

harm to victims, communities, and offenders, and they must all be actively involved in the justice process. All those affected by crime have roles and responsibilities and need to deal collectively with its impact and

consequences. Restoration, problem solving, and the prevention of future harm should be emphasized.

The word "restorative" recognizes that the goal is to restore relationships, rather than simply to determine guilt- more than putting things back the way they were if the relationship was damaged in the first place. - RJ requires that wrongdoers make reparation to the victim, themselves, and the community, recognize the harm

they have done and be actively involved in making things right.

The idea that crime creates obligations is central to restorative approaches. - The offender has an obligation to provide reparation or compensation to the victim and to the community. - The community is responsible for defining standards of acceptable conduct and determining what can be done -

materially or symbolically - to repair the damage when these standards are violated.

A range of responses Restorative justice programs may prevent crime through public education, crime prevention, and encouraging

community members to use mediation to resolve conflicts before they become serious. Police officers may refer matters to alternative measures or other diversion programs before they lay charges.

Alternative measures are programs that offer offenders a way to take responsibility for their behavior and to address the harm that they have committed. These programs, which are legislated under section 717 of the Criminal Code and section 4 of the Young Offenders Act , are developed within provincial guidelines. Diversion programs typically involve sending an offender to programs that may help with the underlying causes of the offending behavior, such as substance abuse or anger management.

After the accused has been charged, matters may be referred to alternative measures programs or community justice committees. If the matter is successfully resolved at this stage, the charges may be suspended.

At the sentencing stage, sentencing circles may assist a judge in determining a fit sentence. Judges may be able to order more restitution to victims, and circles may involve the community in helping the offender.

After the offender has been sentenced, Victim-Offender Reconciliation Panels, circles of support, and reintegration circles can help to meet the emotional needs of victims and offenders. Restorative measures may also include efforts to create safer prison environments and to rehabilitate offenders.

Restorative justice in Canada- There are many new RJ programs in Canada. - An important step came in 1996 when the sentencing principles in the Criminal Code were amended. Particularly

s. 718.2(e), states that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders." Endorsed in Gladue.

- acknowledges that many Aboriginal justice projects use a restorative approach that builds on values of healing and restoring harmony in the community.

- The growing use of restorative justice in Canada was also highlighted in the October 1998 report of the Standing Committee on Justice and Human Rights concerning victims of crime. The Standing Committee's report, Victim's Rights, a Voice Not a Veto , reviewed the role of the victim in the criminal justice system. The report discussed victims' concerns relating to restorative justice and recommended that the proposed "Office for Victims" assess restorative justice initiatives in Canada and develop principles or guidelines to ensure respect for victim's interests. The government's Response, tabled on December 16, 1998, agreed that restorative justice principles should ensure respect for victims and protection of their interests.

Aboriginal justice and restorative justice- There is a strong relationship between restorative justice and Aboriginal justice. - Both philosophies emphasize healing, forgiveness, and active community involvement, and restorative models

have drawn heavily upon Aboriginal methods of resolving disputes. - Furthermore, the rise of restorative justice has been influenced by the activities of Aboriginal groups in Canada,

Australia, and New Zealand, as they have called for self-determination and control over the justice systems that affect them.

Aboriginal concepts of restorative justice tend to be strongly focussed on the community- emphasis on collective well-being rather than individual rights. - stress the need to heal relationships between clans or family groupings as well as between the offender and the

victim, so that balance may be restored to the community as a whole. - look at all of the factors leading to an incident, in order to understand the offender as a person and to uncover

the causes of their behavior.

While these practices overlap with restorative justice in general, there are also important differences, especially because of the link between Aboriginal justice and the desire for self-determination. Aboriginal programs may at times draw upon practices from other cultures, but their main concern is to address the unique needs of Aboriginal people using methods that are grounded in their own values and customs. General restorative justice programs, on the other hand, need to be sensitive to a range of different communities within Canadian society as a whole.

The Gladue decision highlights the importance of using restorative processes in sentencing Aboriginal offenders. At the same time, Aboriginal people - particularly women - have raised concerns about the use of restorative approaches in their communities, especially in cases of sexual assault or family violence. Although a detailed discussion of these issues is beyond the scope of this paper, it should not be assumed that all Aboriginal people agree on the use of restorative justice in all cases.

Restorative justice and the offender- Restoring harmony involves determining sentences that respond to the needs of the victim, the community, and

the offender.- it is in the best interests of society to support offenders in turning away from crime and learning to behave in

socially acceptable ways when they return to the community. - RJ can provide an opportunity to address underlying causes, where there are community programs- Studies show very successful- However, restorative processes may have disadvantages for offenders as well, offenders may feel pressured to

take part in a program, may choose not to seek legal advice or feel they have to admit guilt even if they believe they are innocent.

- In some cases, restorative processes might even result in tougher consequences than a court would impose. - To be effective, restorative justice processes must not only respond to concerns about public safety but also

respect the rights of the accused to state their innocence and to have a fair trial.

Restorative justice and victims of crime- Restorative justice processes provide victims with the opportunity to express their feelings about the harm that

has been done to them, and to contribute their views about what is required to put things right.

- Studies have indicated that victims who are involved in these processes are often more satisfied with the justice system and that they are more likely to receive restitution from the offender.

- challenges to victims: may feel that they have been pressured into participating.

PART II: CONSULTATION ISSUES

The roles of government and community in restorative justice- Both government and community have roles to play in restorative justice- Restorative justice requires community members to be involved as active participants, as early as possible in the

resolution of the conflict. - Victims are involved so that their needs for answers, healing, acknowledgement, safety, and emotional

reparation are met. - Offenders are involved in accepting responsibility for the harms they have caused, making compensation to their

victims and communities, and making positive changes in their own lives. - The community is involved in providing programs for these processes to occur, opportunities for offenders to

make restitution, and safe environments where rights are respected.- Governments develop legislation, policies, and guidelines; forming partnerships between groups; and providing

information, research, and technical support to communities. - RJ may eventually reduce the long-term costs of incarceration and re-offending, - But many other factors can influence program costs (such as unemployment rates, crime rates, and court

backlog).

How can the criminal justice system balance the accused person's right to a fair and open trial against public safety and the need for community participation?How can governments and communities work together to develop restorative justice programs?

Effects on victims- Involvement in RJ can give victims the opportunity to express their feelings about the offence and the harm

done to them, and to contribute their views about what is required to put things right. - Studies have indicated that victims who take part in these processes are often more satisfied with the justice

system and more likely to receive restitution. - Involvement can also help victims with emotional healing and lessen their fears about being re-victimized. - Many victims even find themselves willing to give the offender another chance (more than 90% according to

Chatterjee's survey of the RCMP community justice conferencing approach).- Concern: that programs tend to focus on the offender and do not recognize the needs of victims. - victims may feel pressured into taking part, even if they feel threatened by the thought of meeting the offender. - They may also find meetings inconvenient and time-consuming.

How can restorative justice programs enable victims to have a voice in the criminal justice process without pressuring them to attend or causing them any further distress?How can restorative programs ensure that there is a role for victims in developing and delivering restorative processes?

Appropriate offences for restorative processes- the public tends to be more receptive when the situation involves non-violent, non-repeat offenders and less-

serious crime. - However, programs such as Community Justice Initiatives in Langley, British Columbia, have had some success in

working with sentenced offenders in cases of serious personal and sexual violence. - In a 1995 study of this program, victims said they felt they had finally been heard, that they were less fearful and

that they weren't preoccupied with the offender any more, and that they felt at peace [5]. - This is not to suggest that restorative justice is a cure-all for violent crimes, or that it can be applied to all types

of offences or to all offenders; but the emphasis on healing could make an important contribution in dealing with the harm and damage that has been done.

- Two types of initiatives: (1) alternative measures programs and policies, programs, and (2) legislation that attempt to increase the use of alternatives to incarceration.

- Community-based alternatives to incarceration include options such as conditional sentences where offenders serve their sentence in the community, or diverting offenders to specialized programs for addictions, anger management, and other issues.

- Alternative measures programs offer offenders a way to take responsibility for their behavior and to address the harm that they have committed. Alternative measures policies tend to exclude persons who are accused of more serious assaults, administration-of-justice offences, impaired driving, robbery, and theft over $5000 - but these offences are also the most likely to result in imprisonment[6]. Therefore, if one of the goals of these programs is to reduce the rate of incarceration, then they may have to accept more serious and challenging cases.

- if there is a role for restorative justice in more serious cases, it needs to be defined carefully. - The idea of restoration may be suspect in situations where the offender holds power or influence over the victim

because the victim is especially vulnerable through age, economic dependency, mental or emotional capacity, or because of the nature of the offence (such as spousal assault or sexual offences).

- Similarly, the public expects the justice system to clearly denounce serious and violent crimes, and the use of restorative processes might be seen as compromising that message.

What role can restorative justice play in resolving different types of crimes and conflicts?What offences are appropriate for alternative measures programs? Are there categories of offences that should never be considered?Should reducing incarceration rates be one of the goals of alternative measures programs? If so, what types of offences should be eligible?

Accountability issues - Each provincial and territorial jurisdiction will need to develop partnerships with communities that uphold the

philosophy and the intent of restorative justice. The views of all stakeholders - should be taken into consideration.

- Ensuring that restorative justice programs are accountable and open to the public is one of the key challenges facing government, especially since these programs do not operate in a conventional courtroom setting.

One way of dealing with this issue might be to develop standards for accountability. Possible guidelines: Programs are available and fair to all citizens, regardless of age, race, class, or gender. Programs are accountable to victims by providing victims with a voice in resolving the conflict and advising them

of the offender's progress in meeting the terms of any agreements, while protecting their safety and meeting their needs. Victims also receive restitution and an acknowledgement that the offender has harmed them.

Programs are accountable to communities by protecting public safety and providing them with an opportunity to participate in the criminal justice process.

Programs are accountable to taxpayers for the use of public money. Programs are accountable to offenders by protecting their legal rights and dignity while encouraging them to

take responsibility for their actions and make positive changes in their lives. Programs are open to the public; citizens have opportunities to view the proceedings and learn about

restorative processes and the results of restorative programs.

What guidelines and standards are necessary to ensure that government-supported restorative justice programs will be accountable to victims, offenders, communities, and the public?

Training and standards of practice Successful restorative justice programs depend on well-trained participants.

A working knowledge of the criminal justice system; Professional practice with clients; Sensitivity to victims; Conflict resolution skills; and Administrative skills.

However, training should also reflect the uniqueness of local communities. Legal liability is a concern. Training in the culture of the community should be required. Likely the most beneficial if the facilitator is of a similar culture to the community. To resolve these issues, governments will have to consult carefully with stakeholders in each jurisdiction.

What standards for training and practice should apply to those who are working in the field of restorative justice?

CONCLUSIONGiven the widespread adoption of restorative justice principles by governments, community organizations, and Aboriginal organizations, it seems likely that the trend will continue and that the philosophy of restorative justice will have a major impact upon the practice of criminal justice in the future. Canada has already incorporated restorative processes and principles within the criminal justice system.The subject remains both promising and complicated. Different communities and jurisdictions have different needs, and the same options and solutions are not appropriate to all. At the same time, these solutions need to be based on the common principles of restorative justice. The questions raised in this paper need to be given thoughtful consideration by all those who are concerned about the future of the justice system in Canada.

Specific Sentences

DiversionIssue Case/

SectionNotes

What n/a - Used for minor matters that do not warrant the time or effort to prosecute or do not a warrant a criminal penalty

- Don’t receive a crim record or sanctionWhen to use

s. 717 “Alternate Measure” to deal with someone alleged to have committed offence when not inconsistent with protection of society AND(i) The measures are the ones set up by the AG(ii) the person who is considering whether to use the measures is satisfied that they would be

appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim

(iii) accused fully and freely consents to participate(iv) accused has, before consenting, been advised of the right to counsel(v) the accused accepts responsibility for the alleged offence(vi) there is sufficient evidence to proceed with the prosecution of the offence; and(vii) the prosecution of the offence is not in any way barred at law.

Exception s. 717(2) Can’t use alternate measures where accused (a) denies participation in the offence or (b) wants to deal with the charge in court

Evidence s. 717(3) Can’t use admissions made by accused in process of alternate measures as evidence in criminal or civil proceedings

Absolute and Conditional DischargesIssue Case/ Section NotesWhat s. 730(1) An accused may be discharged absolutely or conditional instead of being

convicted.Conditional s. 731(2) o any probation orders that are applied to you continue in force

o once you complete the probation period without breach you are discharged absolutely

Breach of Conditions

s. 731(4) o if you breach conditions, then you can be brought back to Court and judge can: revoke the discharge, convict the offender, impose a sentence.

o Also then can’t appeal if there was an appeal of the discharge to begin with.Requirements s. 730(1) o has to be a natural person (not a corp)

o must plead guilty or be found guiltyo can’t have minimum punishment (i.e. a minimum fine would count as a

minimum punishment)o can’t be an offence punishable by 14 years or lifeo has to be in the best interests of the accusedo cannot be contrary to public interest

Best Interests of the Accused

Fallofield BCCA 1973

o Where: the accused is a person of good character, without previous conviction, not necessary to convict for rehab or specific deterrence, and conviction may have significant adverse repercussions.

Contrary to Public Interest

Roberts SKCA 2004

o Need to properly reflect general deterrence where necessary to discourage others for doing the same offence

o Gravity of the offence must be reflected in the sentence—if significant then must attract crim conviction

o Cannot give it to do so would undermine public confidence in the justice system

Collier NBCA 2006

o Need something unique in the circumstances, otherwise the need for general deterrence will likely make a conditional discharge not in the public interest—everyone will just do the crime if you don’t get a crim record for it!

Immigration Status

Wisniewski MBCA 2002

o Should consider immigration consequences as a factor, but this cannot be an over-riding factor

o Can’t use immigration status to give discharge where otherwise not appropriate.

o Can just “tip the scales”

ExamplesIssue Where NotesHeld to be Fit

Bertuzzi BC Prov Ct 2004

o the accused pled guilty to assault causing bodily harm for violently hitting an opposing player in a professional hockey game.

o TJ considered mitigating factors, including guilty plea, lack of a criminal record, the incident appearing out of character, being held out to be of good character by community members and early expression of remorse.

o Significant financial penalty and suspension imposed by the hockey league.o A conditional discharge was found to be appropriate as it was in the accused’s best

interest and did not contravene public interest.M(J) Ont SCJ 2007

o Man that assaulted man who was having sex with his wife… did no permanent injury, just choked him for a minute… given conditional discharge.

(1) period of enhanced stress in the M. family(2) Mr. M. regretted what had happened(3) he had taken steps on his own to get help in a serious anger management program(4) the most effective way to assist Mr. M. in being law-abiding in the future was additional

counselling, and(5) an important aspect of Mr. M.'s rehab was continuing to work and parent his children.

Tillman SKPC 2010

o offender had consumed two doses of a sleep-aid medication and two doses of a muscle relaxant medication in the 24 hours prior to the assault.

o colleagues described his behaviour as “loopy” and “definitely not with it”.o He was directed to leave work, which he did, but had no recollection.o After arriving at his residence he approached the victim (16 yr old baby sitter) from

behind, put his hands on her hips and his fingers through the belt loops on her pants, and pulled her rear end toward himself.

o Brief non-consensual contact of a sexual nature was made before the victim told the offender “no” and the contact ceased.

o The offender did not drink or do drugs and had no prior criminal record. He also had extensive community support, apologized to the victim and entered a guilty plea (after successfully applying to expunge his earlier not-guilty plea).

o The court concluded that an absolute discharge was appropriate.o But maybe court was lenient b/c he was general manager of the Riders.

Held Unfit

Roberts SKCA 2004

o Man stole 24,000$ by writing cheques to accounts he knew lacked funds and withdrawing cash

o Although was 1st time offender and had two young children, discharge not appropriateo Discharge would not send proper message of deterrence, and would undermine

confidence in justice… serious offence, lots of $$ involved.Batshaw MBCA 2004

o the accused pled guilty to possession of child pornography.o He was a 22-year-old student and first time offender.o The accused argued that a criminal record would prevent him from becoming licensed as

a psychologist.o TJ imposed a conditional discharge with three years’ probation.o The Crown successfully appealed.o The Court held that in an offence of this kind denunciation is a vital ingredient, calling for

a sentence of imprisonment.o Given the accused’s desired career choice, his record should not be hidden.o The profession’s governing body should be aware of the accused’s record, not as a bar to

his entry, but as a matter of concern which the accused might respond to and satisfy.o A conditional sentence of 15 months was substituted.

Blackburn ONCA 2004

o an off-duty police officer was convicted of dangerous driving.o He drove erratically, in a state of “road rage”, thereby causing a minor collision.

o TJ imposed a sentence of 30 days’ imprisonment.o On appeal, the accused argued that a conditional discharge ought to have been imposed.o The Court disagreed.o The accused’s aggressive driving endangered the public. He drove at a high rate of

speed, he tailgated, and he came to a full stop in the passing lane of a multi-lane high speed highway. His actions exposed the public to the risk of serious injury.

o As a result, a conditional discharge was not in the public interest and would not have satisfied the need for general deterrence

Collier NBCA 2006

o a conditional discharge with probation and 40 hours of community service was not a fit sentence for two incidents of trafficking in small amounts of cannabis.

o The accused operated a taxi and picked up two undercover police officers. The accused sold a total of two grams of marijuana for $30 on two separate occasions.

o The accused was the father of three children and was expecting a fourth child.o He had lost his job as a taxi driver as a result of the charges. He requested a conditional

discharge to facilitate his getting employment as a truck driver which would require him being able to cross the border between Canada and the United States.

o On appeal, the Court held that a conditional discharge was not fit and substituted instead two conditional sentences of two months imprisonment to be served consecutively.

ProbationIssue Case/

SectionRatio Notes

When can Probation be ordered?4 ways

s. 731(1) May order probation having regard to (1) the age and character of the offender, (2) the nature of the offence and (3) the circumstances surrounding its commission, IN THE FOLLOWING FOUR SCENARIOS

s. 731(1)(a) 1. Suspended Sentence: where no MMS, can suspend the sentence and direct that the offender be released on conditions in probation order

- Suspending the punishment awaits the successful completion of the probation.

- You’re convicted.- It'll just be a suspended

sentence.- If you breach probation....back

to court and you're given a sentence

s. 731(1)(b) 2. In Addition to Sentence of 2 years or less OR fine: b/c of the use of the words “or” can’t give probation if there is a fine AND sentence.

Thus if sentence is 2 years plus one day: NO PROBATION

Goeujon BCCA 2006

Calculation of term of imprisonment does not include pre-sentence custody for the purposes of determining whether probation is available.

Mathieu SCC 2008

Words of s.731(1)(b) refer specifically to the term of imprisonment imposed at time of sentencing. Pre-sentence custody is not part of the sentence, just a factor taken into account when determining a fit sentence. Therefore, do NOT consider pre-sentence custody when determining eligibility for parole.

i.e. so you could have spent one year pre-sentence, and then get a sentence of two years and you would still be eligible for a probation order.

Knott SCC 2012

It is only the sentence that is being issued in conjunction with the parole order that must be less than two years. Cannot invalidate an earlier parole order just b/c you committed another offence and now will be spending more than two years in jail.

So NO automatic invalidity of probation just b/c you have a new or previous sentence that puts you over two years.

However, when deciding whether probation is appropriate consider unexpired sentences. Also fresh sentence may render previous probation invalid considering:- Probation may not be useful after

lengthy sentence- fresh sentence may strip existing

probation order of rehab purpose

s. 731(2) 3. Conditional Discharge: where you are discharged on conditions, the conditions are in a probation order.

- Different then suspended sentence b/c you are NOT convicted (see diversion section above)

s. 732(1) 4. Intermittent Sentence:Only for sentences of 90 days or less, while you are not in jail, you are on probation.

- Can also continue after the completion of the sentence of imprisonment.

Purpose of Probation

Proulx SCC 2000

Primarily a rehabilitative tool

Lam BCCA 2005

Therefore, if the offender is not at a risk to re-offend, probation is not appropriate

- Probation quashed in this case b/c unnecessary.

When does it s. 732.2(1)(a) On the date the order is made

come into force? s. 732.2(1)(b) BUT IF the offender is going to or is in jail (for another offence), in which case it starts the date the offender is released from prison OR if on conditional release at the date of expiration of the sentence.

s. 732.2(1)(c) BUT IF the offender has to serve a conditional sentence, it starts at the expiry of the conditional sentence.

s. 732(1)(b) BUT IF intermittent sentence, it begins whenever you are not in prisonMaximum Period of Probation

s. 732.2(2)(b) the maximum period of probation is 3 years from when the order comes into force.s. 732.2(5)(e) Exception: can extend probation up to one year beyond the three years where

offender is convicted of breach of probation under s. 733.1.Effect of new term of imprisonment while on probation

s. 732.2(2)(a) If you are convicted of an offence while you are on probation, the probation order continues regardless of what the punishment is for that new offence EXCEPT in as so far a term of imprisonment might make it impossible to comply.

- i.e. if you are given a term of imprisonment, clearly can’t be out looking for work.

Mandatory Conditions

s. 732.1(2) MUST(a) keep the peace and be of good behavior(b) appear before the court when required to do so by the court(c) notify the court or the probation officer in advance of any change of name or

address, and promptly notify the court or probation officer of any change of employment or occupation.

R v S(S) Nfld CA 1999

Keeping the peace and being of good behaviour imposes separate and distinct conditions that may overlap in certain circumstances. Breach of peace is a violent disruption or disturbance of public tranquility, peace and order.

R v R(D) Nfld CA 1999

Failure to be of good behavior is limited to non-compliance with federal, provincial or municipal statutes and regulations, and obligations imposed by court orders applicable to the accused.

Optional Conditions

s. 732.2(3) MAY(i) report to a probation officer (when and as directed)

(i) within two working days, or such longer period as the court directs, after the making of the probation order, and

(ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;

(ii) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

(iii) abstain from(i) the consumption of alcohol or other intoxicating substances, or(ii) the consumption of drugs except in accordance with a medical

prescription;(iv) abstain from owning, possessing or carrying a weapon;(v) provide for the support or care of dependants;(vi) perform up to 240 hours of community service over a period not exceeding

eighteen months;(vii) if the offender agrees, and subject to the program director’s acceptance of the

offender, participate actively in a treatment program approved by the province;

(g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;

(g.2) where the lieutenant governor in council of the province in which the

probation order is made has established a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and

(viii) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.

Proulx SCC 2000

Conditions should be designed to achieve rehabilition or recidivism purposes NOT simply to make the sentence of probation more onerous for retributive/denunciatory purposes.

Drug Testing Shoker SCC 2006

Sentencing judge has no authority under s.732.1(3)(c) or (h) to authorize a search and seizure of bodily substances as part of the probation order.- Conditions that impose risk require

consent of offender- Conditions that are for gathering

evidence for enforcement do not just monitor behaviour

- Raises constitutional concerns as well- No clear language indicates you can do

this, would need to have that- Also judge doesn’t have jurisdiction to

determine breach of probation just by reading a drug test—this breaches innocent until proven guilty.

- Parliament responded by amending this section specifically authorizing mandatory drug testing, but this has not yet come into force.

Drugs and Alcohol:Abstention

Coombs ABQB 2004

- Don’t want to require absolute abstention where this is just setting the offender up for failure

- Where someone is an addict, may need to allow for ‘slips’ as they are on the road to recovery

- As long as they are participating in treatment and trying to get better this should be ok… don’t need absolute

- Probation order are INDIVIDUAL so what is appropriate in one is not in another, consider particular offender and what they need for rehabilitation

- May be appropriate to have absolute abstention in one- Also in this case, want to encourage offender to be honest with probation officer

so they can decide the best course of treatment… if it was absolute abstention wouldn’t be able to do this.

Caja ONCA 1997

- As a general rule don’t prohibit drugs or alcohol unless there is a link btwn their use and the offence

Hardenstine BCCA 2008

- However if the offender has a background with addiction, even where there is no direct link to the crime it can be appropriate to prohibit alcohol/drugs.

Treatment Rogers BCCA 1990

- Compulsory treatment under a probation order violates s. 7… need to have the offender’s consent.

(g.1—requires compulsory attendance. But Gerry doesn’t know of any provinces that have a program established by the L in C to use this provision… but possible it might not survive a constitutional challenge)

Examples of Residual Clause Conditions… can get very creative.Banishment Felix NWT SC

2002Can’t use banishment just to rid a community of an undesirable person, b/c this just foists them onto a neighbouring community.

However, is appropriate if imposed to protect certain individuals in the community

from violence. Used as a form of a restraining order under (h).Taylor SKCA 1997

Banishment of aboriginal offender to a remote island for one year (recommended by sentencing circle) upheld.

Reid BCPC 1999

Banishing drug addicts or prostitutes from certain esctions of acity (“red zoning”) may be reasonable in some cases, but not on the facts of this case.

Electronic Monitoring

R v M(DES) BCCA 1993

Before conditional sentences existed, this was used to ensure that curfew or home confinement followed. But now this is more likely to be dealt with under CS.

Host a Potlatch Morris BCCA 2004

Terms not capable of enforcement or implementation, b/c community could not agree who was included in “elders” or what exactly a “potlatch” should be. B/c it is the community which must explore these types of restorative measures, court didn’t want to decide for them.

Random Computer Searches

Woroby MBCA 2003

- Random computer searches imposed for child pornography (offender still allowed to use internet)

- OK b/c the offender consented, so this eliminates any charter concerns- However searches must still be reasonable in the circumstances and in the

manner that they are carried out- Can’t search at night unless special authorization obtained- Randomness is reasonable, b/c that is the only way you would catch anything

(otherwise you’d just wipe your hard-drive in advance)Irrevocably Assign Property Interest

Smith ONCA 2005

- Court has no jurisdiction to order as a term of probation the irrevocably assignment of a property interest (website in this case)

Not reside where internet available

- Enforceability of such a condition is questionable- Is it possible to structure in such a way to minimally impinge upon family

members who may require internet for their day to day activities?Restricting right to bring civil actions against specific people

Finck ONCA 2003

- Done under (h)- TJ has jurisdiction to impose such a condition b/c offender had history and

penchant for harassment by litigation against a specific family- Condition said he had to seek court leave before starting any action against that

familyRestitution Orders MacAdam

PEI CA- Restitution Orders should NOT be a part of probation b/c there is a now a

separate provision to order that under.Make a Charitable Donation

Wisniewski MBCA 2002

- No agreement across the country whether this is a legit or desirable practice or not.

- In QB and ONT seems to be approved of- BC and NWT disapprove… they say that if the offender deserves a fine they

should get a fine and not have it as a condition of probation- However AB trial courts seem to order it a lot- MB there is a binding judgment that says don’t do it, so the court doesn’t.

Varying Conditions

s. 732.2(3) A court that makes a probation order MAY,(a) make any changes to the optional

conditions that in the opinion of the court are rendered desirable by a change in the circumstances since those conditions were prescribed,

(b) relieve the offender, either absolutely or on such terms or for such period as the court deems desirable, of compliance with any optional condition, or

(c) decrease the period for which the probation order is to remain in force

- on application by the offender, the probation officer or the prosecutor

- offender must appear- Court hears from offender AND

either probation officer and/or prosecutor

- If they make the order to change, have to endorse the probation order and inform the offender of this action and give them a copy of it.

Failure to Comply s. 733.1(1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of:

(a) Indictable, max two years(b) Summary, max 18 months or fine max $2000 or both

Breach of ProbationIssue Case/

SectionRatio Notes

What will the Court do?

n/a The Court has THREE options:(A) Do nothing(B) Vary the conditions: See s.732.2(3) above(C) Charge with offence of breach of probation: s. 733.1

Offence of Breach of Probation

s. 733.1 If the offender fails or refuses to comply with the order without reasonable excuse, is guilty of a hybrid offence.

s. 732.2(5)(d)

Where a probation order is made under s.731(1)(a), the court can revoke the order and impose any sentence that could have been imposed if it had not been suspended when the accused is convicted of ANY offence while on probation (this includes offence under s. 733.1)

Consequence of conviction while on probation (under s. 733.1 or any other section): Revoke Suspended sentence or vary conditions + extend.

s. 731.2(5)(e)

OR the Court can vary the optional conditions as they see fit and extend term up to one year.

Interlock Program in BCIssue Section Ratio NotesWhat is it? OSMV Fact

Sheet- Interlock device prevents a driver from starting or continuing to drive a vehicle if

they have been drinking- Wired into system of ignition- Driver provides breath sample, has to be free of alcohol to drive- Demands ongoing, random breath samples while engaged- Device records all attempts to tamper with it- Device will warn you if you fail or tamper with it to stop driving- If you don’t stop, turns on the horn and hazard lights until it shut down.

When are you subject to it?

s. 732.2(3)(g.2)

As a condition of probation under this section, with CONSENT of the offender.

s. 259(1.1) Where you are convicted of the offence of impaired (s. 253) or refusing to give a breath sample (s. 254(5)) you are subject to a one year driving prohibition UNLESS you take part in the interlock program, in which case you can drive after 3 months with the interlock.

OSMV Compulsory interlock for offence under Code committed after Feb 1st 2009 for one year otherwise no re-issuing of licensing

This costs $1,500

Also, have to complete Responsible Driver Program before starting interlock, either:(1) One day(2) 16 hour group counselling over three months(3) Community based alcohol treatment program

Drug counsellor with OSMV determines which program you need, costs $880.

CorporationsIssue Case/

SectionRatio Notes

Additional Factors to Consider

718.21 (a) Any advantage realized as a result of the offence(b) Degree of planning involved, duration and complexity(c) Attempts to conceal or convert assets to show it can’t pay restitution(d) Impact of sentence on economic viability and continued employment for workers(e) Cost to public authorities for investigation and prosecution(f) Regulatory penalities imposed(g) Previous similar convictions or regulatory sanctions(h) Penalty imposed by organization on the representative involved in offence(i) Restitution offered or paid to victims(j) Measures taken to reduce future risk of same offence.

Fines s. 735(1) Can be fined in lieu of imprisonment, (a) no max for indictable (b) $100,000 for summary.

s.734.6 When organization fails to pay, can enforce as a civil judgmentProbation s.731 Can impose probation on a corporation, b/c:Conditions s.732.1(3.1) Optional Conditions for Corporations:

(a) Restitution to anyone who suffered a loss resulting from offence

(b) Establish polices, standards and procedures to reduce likelihood of recidivism

(c) Communicate the stuff in (b) to its representatives

(d) Report to the court on the implementation of stuff in (b)

(e) Identify senior official who is responsible for enforcing (b)

(f) Provide, in the manner specified by the court, to the public any of the following info:

(ii) The offence(iii) The sentence(iv) Any measures they are

taking to reduce recidivism

(g) Comply with any other reasonable conditions to remedy harm or reduce recidivism.

s.732.1(3.2): before imposing policies, standards and procedures, consider whether it is appropriate for another regulatory body to supervise and develop them.

FinesIssue Case/

SectionRatio Notes

Definition s. 716 Monetary penalties not including restitution orders.Purpose n/a - Punitive

- Imposing a penalty- Accord with principles of restraint in s. 718- Viable option instead of jail- Lots of people are in jail who don’t need to be

Problem n/a - Culturally, everything that isn’t prison is seen as “easy” or “soft”- Public doesn’t consider fines sufficient- Thus can put the administration of justice into disrepute- Also fines are applied equally to everyone—problematic b/c if not based on ability to

pay can be meaningless or overly harsh.Solution n/a - Create proportional fining like in ScandinavianPre-1996 Law n/a - Fines as a stand alone sentence could only be used for offences punishable by less than

five years- Otherwise, you would have to have imprisonment as well- Led to a lot of sentences of “one day in jail” plus fine- Also, judges didn’t ask about offender’s ability to pay- At time of sentence, judge would give find or an alternate jail sentence should you fail

to pay- Led to a lot of people automatically getting jail time, as no one inquired why they didn’t

pay.When Can the Court Impose?

s. 734(1) Court may fine a natural person who has been convicted of an offence by making an order under s. 734.1 IF

(a) There is no MMS, it can be in addition to or in lieu of any other sanction the court is allowed/ required to give

(b) Where there is an MMS, then they can give in addition to that MMS or any other sanction allowed/ required to give.

s. 734(2) BUT can only give a fine if the court is satisfied that the offender is able to pay or discharge it under s. 736 (i.e. community service program)

EXCEPT of course, where there is a minimum fine or the fine is imposed in lieu of a forfeiture order.

s. 734(8) Apply all these sections to a fine imposed under any federal act.

Except for wilful defaulters calculated by different method or has min/max punishment.

Fine Option Program

s. 736 - if you can’t pay a fine you can work it off doing community service- IF the province has set up a program (BC and ON have not.. most other provinces have)

Amount of Fine Allowed

s. 787 Unless otherwise provided, the maximum fine for summary convictions is $5000n/a - No other general fine limits are specified, so look to the section.

- If the section doesn’t say, the amount is up to judicial discretion… considering normal sentencing objectives and principles and ensuring the sentence is fit (i.e. proportionate)

s. 735 - For CORPORATIONS max fine on summary is $100,000 unless specified elsewhere (i.e. in another statute)

- No max for corps on indictableProcedure s. 734.1 - To fine someone, make an order under this section

- Must include:(a) Amount(b) Manner in which it is to be paid(c) Time or times by which the fine or any portion must be paid

(d) Other terms respecting payment as deemed appropriate by the courts. 734.2(1)

- Court has to(a) give a copy of the order to the offender(b) explain s.734, 734.8 and 736(c) explain procedure of applying under s. 734.3 for

change to optional conditions and fine option programs under s.736

(d) Reasonable measures to ensure offender understands

(2) But failure to comply with this section does not invalidate the order.

*In practice this is all done by an Admin person not the Judge.

Changes s. 734.3 - Can change any term of the order EXCEPT for the amount

On application by offender

Who Gets the Fine?

s. 734.4(1)

Provincial treasury where fine imposed if not otherwise specified.

s. 734.4(2)

Canada if:(a) Fine or forfeiture imposed

(i) b/c of revenue law of Canada(ii) b/c of breach of duty in office by officer or employee of gov of Canada(iii) b/c of proceedings in which gov of canada bears the cost for prosecuting

(b) a recognizance in connection with proceedings above is forfeiteds. 734.4(3)

- If a municipality bears all the cost of administration, then either the prov or Canada can order the money to go to them.

Default s. 734 (4) and (5)

- If you don’t pay the fine where you have the ability, you go to jail.

- Time in jail is calculated using mathematical formula, which is:

- Amount of unpaid fine divided by the minimum wage per day. Round down if it is a decimal.

- However, can’t give more time in jail than the maximum punishment for the offence OR where there is no maximum listed, more than 5 years for indictable and 6mnths for summary.

Example:

$700 left unpaid fineMin wage is $10/hourWork day is 8 hoursSo minimum wage per day is $80

700 ÷ 80 = 8.75

Rounded Down: 8 days in jail.s. 734.5 If person is in default and

(a) The fines belong to the province, province can refuse to renew, suspend or refuse to issue one of their licences until fine is paid in full (onus on offender to prove it is paid)

(b) The fines belong to Canada, Canada can refuse to renew, suspend or refuse to issue one of their licences until fine is paid in full (onus on offender to prove it is paid)

734.6(1) Where (a) offender is in default of a fine or (b) hasn’t paid a forfeiture, then (c) AG of province to whom fine/forfeiture belongs or (d) AG of Canada to whom fine/forfeiture belongs, can file a civil judgment to claim the amount.

s. 734.7(1)

Can issue a warrant for committal if fine not paid(a) At expiration of time allowed, and(b) If court is satisfied:

(i) S.734.5 and 734.6 won’t help recover the funds(ii) Offender has no reasonable excuse for not paying

Restitutiono An order for an offender to make a specific payment to the victim for harm causedo Section 738 authorizeso Section 741- enforcement as a civil judgment o Aligns with s. 718(e) which states an objective of sentencing is to provide reparationo Very seldom usedo Courts are only willing to give if it is very easy to determineo Courts don’t see it as their function as a criminal court to provide restitution—that is more of a private law

mattero Section 740 even gives PRIORITY to restitution over fines and forfeitures, however this is not reflected in the

judgments of the court

Victim Surchargeo Under s.737(1) Anyone convicted under the CCC or CDSA shall pay a victim surcharge in addition to any other

punishment imposed on the offendero Amount: s.737(2)(a) 30 percent of any fine imposed or (b) if no fine imposed, then (i) $100 for summary and (ii)

$200 for indictable.o Note that the sections which gave the judge discretion to waive the surcharge were REPEALED on OCTOBER 24 th

2013… also repealed s.737(10) which said you couldn’t work off a surcharge under the fine option program under s.736. So now it appears you can?

o Issue: Is this a penalty? If it is, then can’t be retroactive and can’t apply to anyone who was convicted before Oct 24th 2013. If it isn’t, then could applied to anyone sentenced after Oct 24 th 2013.

Driving and Weapons ProhibitionsIssue Section NotesDriving: Mandatory ProhibitionsImpaired & Refusing to Submit to a Breathalyzer demand

s. 259(1) A person who is convicted (or receives a discharge) under s. 253 (impaired driving and over 08) or s. 254 (refusing to submit to a Breathalyzer demand) shall, in addition to any other punishment, be prohibited from operating a motor vehicle for the following periods (plus any period to which the offender is sentenced to imprisonment):(i) 1st offence - minimum 1 year; maximum 3 years (plus any term of

imprisonment)(ii) 2nd offence - minimum 2 years; maximum 5 years (plus any term of

imprisonment)(iii) 3rd and subsequent offences - minimum 3 years (plus any term of

imprisonment); no maximum is specified so the prohibition could be up to life

s. 259(1.1) and (1.2)

Exemptions to the above time periods for offenders registered in a provincial alcohol ignition interlock device program after serving a prohibition of at least 3 months for a first offence, 6 months for a second offence and 12 months for each subsequent offence, unless the Court orders a greater period.

Dangerous Driving While Street Racing

s. 259(3.1)

A person convicted under s. 249.4(1) (dangerous driving while street racing)-- 1st offence -- minimum 1 year; maximum 3 years (plus any term of imprisonment)-- 2nd offence -- minimum 2 years; maximum 5 years (plus any term of imprisonment)-- 3rd offence -- minimum 3 years (plus any term of imprisonment); maximum life

Dangerous Driving or Criminally Negligent Driving Causing Bodily Harm While Street Racing

s. 259(3.2)

A person convicted of this (s.249.4(3) and 249.3) subject to:-- 1st offence -- minimum 1 year; maximum 10 years (plus any term of imprisonment)-- 2nd offence -- minimum 2 years; maximum 10 years (plus any term of imprisonment)-- 3rd offence -- minimum 3 years (plus any term of imprisonment); maximum life

Dangerous Driving or Criminally Negligent Driving Causing Death While Street Racing

s. 259(3.3)

A person convicted of this (s. 249.4(4) and 249.2) subject to:1st offence-- criminal negligence causing death - minimum 1 year (plus any term of imprisonment); maximum life-- dangerous driving causing death - minimum 1 year; maximum 10 years (plus any term of imprisonment)

Previous Conviction for Street Racing Causing Death

s. 259(3.4)

If the accused has been convicted of criminal negligence causing death/bodily harm while street racing or dangerous driving causing death/bodily harm while street racing, and the current conviction or a previous conviction for street racing involved a death, the driving prohibition "shall be" for life.

Driving: Optional ProhibtionsIf this offence committed with motor vehicle

s. 259(2) (a.1)

Maximum of life where offence punishable by lifeo s. 220 - Criminal Negligence Causing Death [life]o s. 236 - Manslaughter [life]o s. 294(4)- Dangerous Driving Causing Death [life]o s. 249.1 - Fleeing a Police Officer if death caused [life]o s. 252 - Failure to Stop at Scene of Accident if death caused [life]

o s. 255(3) to (3.2) - Impaired Driving, over .08 and Refusal Causing Death [life]

s. 259(2) (b)

Maximum of 10 years where offence punishable by more than 5 years but less than lifeo s. 221 - Criminal Negligence Causing Bodily Harm [10 years]o s. 249(3)- Dangerous Driving Causing Bodily Harm [10 years]o s. 249.1 - Fleeing a Police Officer if bodily harm caused [14 yrs]o s. 252 - Failure to Stop at Scene of Accident if bodily harm caused [10 yrs]o s. 255(2) to (2.2) - Impaired Driving, over .08 and Refusal Causing Bodily

Harm [10 years]s. 259(2) (c)

Maximum of 3 years for any other offenceo s. 249(2) - Dangerous Driving [indictable: 5 years]o s. 249.1 - Fleeing a Police Officer [5 yrs]o s. 250 - Failure to Keep Watch [Summary Conviction: 6 months/$5,000

fine]o s. 251 - Unsafe Vessel/Aircraft [ 5 years]o s. 252 - Failure to Stop at Scene of Accident [ 5 yrs.]

Driving While Prohibited s. 259(4) Section 259(4) makes it an offence to drive while prohibited punishable on indictment by a maximum of 5 years imprisonment or punishable on summary conviction (per s. 787). The driving prohibitions for this offence are set out in s. 259(1) and may be made consecutive to any other existing driving prohibition [s. 259(2.1)].

Firearms: Mandatory ProhibitionsGenerally s. 109(1) A court shall, in addition to any other punishment, make an order prohibiting a

person from possessing "any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for any of the offences listed in paragraphs (a) to (d) of s. 109(1).

(a) indictable offence punishable by 10 years or more which involved violence or threat of violence; In R.v. Lonegren, 2009 BCSC 1678, the Court held that the sexual touching of a young girl, in the circumstances of that case, did not constitute an offence involving “violence or a threat of violence.”

(b) most firearms offences as well as criminal harassment;(c) trafficking, importing, exporting or producing drugs under the

Controlled Drugs and Substances Act;(d) offences involving weapons where a weapons prohibition order was

already in effect.Duration s. 109(2) for a first offence of not less than 10 years (after any period of imprisonment)

for certain firearms and weapons, and not less than life for other more serious firearms and weapons.

s.109(3) the prohibition is for life for all subsequent firearms/weapons offences.Firearms: Optional ProhibitionsGenerally s. 110(1) For offences described in paragraph (a) or (b) of that subsection, the court, in

addition to any other punishment, "shall consider whether it is desirable in the interest of the safety of others" to make a firearms/weapons prohibition. The offences listed in paragraph (a) and (b) are offences involving the use of or threat of violence, or a weapons offence, which offence is not already subject to a mandatory prohibition order under s. 109 above.

Duration s.110(2) The prohibition can be made for a maximum of 10 years (after any release from imprisonment).

If Court does NOT prohibit s. 110(3) The court must include a statement of its reasons for not doing so.

Intermittent SentencesIssue Section NotesWhen s.732(1) - sentence of 90 days or less

- can be for default of a fine or otherwise- considering age, character of offender, nature of offence and circumstances

regarding its commission- and there is available accommodation to ensure compliance

What s.732(1)(a) - order the sentence be served intermittently at such times as are specified in the order; and

s.732(1)(b) - the offender must comply with condition of probation order while not in confinement

- probation period can extend beyond length of jail time.Variation s.732(2) - If you start intermittently, can give notice to prosecutor and then apply to

the court to serve it consecutively instead.s.732(3) - If the offender gets a new sentence of imprisonment while serving an

intermittent sentence, the unexpired portion will be served on consecutive days unless the court says otherwise.

Middleton SCC 2009

- But if you get a new conditional sentence while servicing an intermittent sentence, s.732(3) does not apply… keep serving the intermittent sentence as usual (or you might serve the conditional first and then finish off the intermittent?)

Appropriate Accommodation

- Unusual, the judge can’t use this if there is no jail willing to take an intermittent prisoner

- Problematic because it is supposed to be the state’s job to enforce any sentence that the judge gives so should be able to give it regardless of whether there is appropriate accommodation

- The reason jails don’t like it is because there is lots of paperwork, inspections, risk that they will bring something in, they come on weekends where they have less staff available

- So in the past, the practice was that jails would refuse to do them and so the accused would show up and be given a temporary absence pass… kind of made a joke of the justice system

- Provincial governments have been lobbying the feds to abolish intermittent sentences b/c they say it is too much of a burden on the administrative state.

Where n/a - Provinicial jail (s.743.1(3))- So if you don’t live by one this could be problematic- Idea was that you could make arrangements to spend the time at the local

police lock up if you were too remote- But that depends on the availability of the facility and the willingness of the

police forceUse for n/a - Commonly for 2nd conviction of impaired driving

- Where someone is employed or going to school- But court wants to send strong message and take away liberty for a bit.

ImprisonmentWith the 1996 amendments, efforts were made to reduce imprisonment:

- Restraint principles 718.2(e) and (f)Today: Disconnect between practice and principles

- Imprisoning at a faster rate- New MMS, reducing pre-trial credit, mandatory consecutive sentences

Effectiveness- No more or even less effective in deterrence and rehabilitation- Increases recidivism - “school for criminals”

Philosophy: Why Use Restraint?- The incarceration system is very expensive- Produces little benefit for society other than false perception in the public of safety and giving offenders their

‘just deserts’- Makes it impossible for offenders to get a job afterwards, to become contributing members of society

Philosophy: Why do We continue to imprison?- Society feels safer- Society has a desire to punish the offenders

Problems- Minorities are incarcerated at a much higher rate- Discrimination against women when it comes to locale, there are less female prisons so they have to go farther

away from their families. In Victoria there isn’t even a female remand centre have to go to the mainland.Issue Section NotesPunishment for Summary Where Not Stated

s. 787(1) A fine of max $5,000, a term of imprisonment max 6 months or both.

Punishment for Indictable Where Not Stated:

s. 743 Max five years in prison if convicted of an indictable offence and no other punishment stated.

Where to Serve Imprisonment?

s. 743.1(1)

Anyone sentenced to prison for(a) life(b) a term of two years or more, or(c) two years or more when considering total of consecutive sentences

PENITENTIARYs.743.1(2) If you get a subsequent sentence of less than two years while you are

serving a sentence in a penitentiary, you serve it in the penitentiary.s.743.1(3) If you are sentenced to any length of time not mentioned above (i.e. less

than two years) then you go to a provincial jail.

Conditional SentencesIssue Case/

SectionRatio Notes

What s. 742.1 “a sentence of imprisonment of less than two years where the Court order that the sentence be served in the community, subject to the offender complying with conditions specified by the Court”

- Not a new idea to serve sentence in community, sentences of actual imprisonment are usually served partly in community in the form of parole and/ or statutory release

What for Proulx SCC 2000

To remedy the problem of over-incarceration, Parliament created conditional sentences of imprisonment as an “intermediate sentencing option” between imprisonment of less than two years and probation.

- Serves objectives of rehab, reparations and promotion of responsibility

- BUT also is punitive and serves objectives of denunciation and deterrence.

Statistics on use:- CS used in 5.3% of cases in

2004- Its use ecline to 4.7%

cases in 2008- Study in 2004 indicated

that 13-15% of persons who may otherwise have been sentenced to imprisonment received instead a conditional sentence

vs Probation Proulx SCC 200

Suspended sentence w probation is a rehabilitative tool. Conditional sentence addresses punitive and rehabilitative objectives because:

- Only 3 mandatory conditions for probation but 5 for CS- Mandatory treatment during CS regardless of consent unlike probation- Even though penalty for breach of probation is more severe, CS has to be

more punitive otherwise it would be redundant.- Can’t have people that would otherwise be sent to jail all the sudden serving a

sentence less onerous than probation when those who deserve only probation are less blameworthy

vs Imprisonment

Proulx SCC 2000

Although CS is by definition a sentence of imprisonment, there are significant differences:

- Only partial deprived of freedom- Can continue to enjoy normal employment or education- Not deprived of private life to same extent- Not on regimented schedule or diet- BUT doesn’t mean CS “light”- Conditions may be very onerous- Don’t get parole (although this isn’t really worse b/c parole is a lot like being

put on a CS… they don’t get parole b/c they are already in society so don’t need reintegrating

- So CS is usually more lenient than jail of same duration- Also incarceration is threatened punishment for breach of conditions, so

clearly jail must be worse.Availability Charter 11(i) Any person charged with an offence has the right, If

found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Apply the provision that was in force when they COMMITTED the offence (unless the amendment provides a LESSER punishment)

742.1 From 1996 until Nov 30th 2007Any offence except those with a MMSFrom Dec 1st 2007 to Nov 19th 2012Any offence EXCEPT those with MMS and

(1) A serious personal injury offence (under s. 752)

(2) A terrorism-related offence (s. 2), or(3) A criminal organization-related offence (s.2)(4) Prosecuted by way of indictment for which

the max term is ten years or more

- Unclear whether point (4) only modifies point (3) or also (1) and (2)

- See special notes on issues to consider under this provision ***

From Nov 20th 2012 until NOWCan give if sentence is less than two years, (will be subject to conditions in s.742.3)AND

(a) CS would not endanger community and would be consistent with the fundamental purpose and principles (718-718.2)

And the offence is:(b) Not punishable by MMS(c) Not prosecuted by way of indictment where max is 14 years or life(d) Not terrorism/ criminal org prosecuted by way of indictment with max of ten

years or more(e) Not prosecuted by indictment, with max term of ten years that

(i) Resulted in bodily harm (defined in s. 2—anything more than merely transient or trifling, including psychological harm… this will include a lot of offences)

(ii) Involved the import, export, trafficking or production of drugs(iii) Involved the use of a weapon (defined in s. 2, and s. 84 which

describes a certain type of a weapon i.e. a prohibited weapon);(f) Not any of these offences prosecuted by indictment:

(i) section 144 (prison breach),(ii) section 264 (criminal harassment),(iii) section 271 (sexual assault),(iv) section 279 (kidnapping),(v) section 279.02 (trafficking in persons — material benefit),(vi) section 281 (abduction of person under fourteen),(vii) section 333.1 (motor vehicle theft),(viii) paragraph 334(a) (theft over $5000),(ix) paragraph 348(1)(e) (breaking and entering a place other than a

dwelling-house),(x) section 349 (being unlawfully in a dwelling-house), and(xi) section 435 (arson for fraudulent purpose).

Application Proulx SCC 2000

Meet statutory requirements (i.e. no MMS, none of the excluded sentences etc. LOOK VERY CAREFULLY AT THE PROVISION) THEN to determine if appropriate…

Stage One:Exclude possibility of probationary measures and sentences two years or more (if either of these appropriate, CS not available) i.e. need to decide that a sentence of imprisonment of two years or less is appropriate.

- Only need to consider principles to the extent necessary to narrow the range of sentences for the offender.

- Submissions of counsel may agree on a range and therefore make this step quick

Stage Two:If stage one passed, then precondition of offender not being a “danger to the community” consider:

(1) The risk of re-offending- if there is a real risk, incarceration appropriate- Has offender previously complied with court orders and do they have a crim

record?- Also: nature of offence, relevant circumstances, degree of participation,

relationship of accused and victim, profile of the accused i.e. occupation/ lifestyle/ crim record/ family/ mental state, conduct following the commission of the offence, danger that interim release represents to the community especially the part of community that is effected by the offence. (not exhaustive)

(2) If there is only a minimal risk of re-offence, then consider Gravity of the damage that could ensue in the event of re-offence… minimal risk could be offset by the possibility of great prejudice and incarceration should be imposed.

- Particularly with violent offenders… a small risk of very grave future harm will mean the prerequisite is not met.

Note: harm can be economic as well as physical or psychological.

Stage Three: consider if CS is consistent with fundamental purpose and principles of sentencing in ss. 718-718.2

- Remember, CS available for all offences except those statutorily excluded.- No presumption of excluding CS otherwise. Sentencing is an individualized

process- Also no presumption that CS is appropriate once statutory requirements met.

Must consider principles for unique case. But b/c of principles of restraint (718.2(e) and (f)) have to give serious consideration to CS whether stat prereqs met.

- Denunciation and deterrence can be met through CS, but the more serious the offence the longer and more onerous the CS will have to be

- Where deterrence and denunciation is very pressing, then incarceration is preferable even though restorative goals may also be important.

- CS better than incarceration at achieving the restorative objectives of rehab, reparation and promotion of responsibility

- Aggravating circumstances not a bar to CS, although may increase need for denunciation and deterrence and therefore make jail preferable.

- No party bears onus to prove CS appropriate/ inappropriate. Judge decides based on all relevant evidence

- Same appellate standard of intervention applies to CS as to other sentences.R v WU SCC 2004

Conditional sentence is not available for imprisonment in default of fine payment

R v Fice SCC 2005

Amount of credit granted for pre-trial custody is to be added to the actual sentence imposed. If the total is two years or more a CS cannot be given.

Contrast with Mathieu SCC 2008 where pre-trial credit not included when determining 2 year threshold for probation order

Wells SCC 2000

Gladue factors are relevant to determining whether to give a CS but not determinative… as usual Gladue doesn’t mean that aboriginal offenders will automatically receive lesser or non-jail sentence

MacDonald NSCA 2003

CS will not be imposed if it “may endanger the community”… here not appropriate b/c case of serious domestic assault (2nd time)… need for rehab gives way to need to

protect communityMohamad ONSCJ 2004

CS cannot be imposed where it reflects insufficient stigma or denunciation.

Conditions 742.3(1) Five Compulsory Conditions:(a) keep the peace and be of good behaviour(b) appear before the court when required to do so(c) report to a supervisor

(i) within two working days after the CS is given (court can change length of time)

(ii) whenever required to by the supervisor and in the way they want.(d) Remain w/n jurisdiction of court unless written permission is given by court or

supervisor(e) Notify court/ supervisor in advance of change of name, address. Promptly

notify of any change of employment or occupation.742.3(2) Optional Conditions:

(a) abstain from(i) the consumption of alcohol or other

intoxicating substances, or(ii) the consumption of drugs except in

accordance with a medical prescription;(b) abstain from owning, possessing or carrying

a weapon;(c) provide for the support or care of

dependants;(d) perform up to 240 hours of community

service over a period not exceeding eighteen months;

(e) attend a treatment program approved by the province; and

(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

Difference between probation:Probation order, condition of “active participation in a treatment program” under s.732.1(3)(g) can only be made if the offender consents.CS: no consent, but only requires “attendance” not active participation.

**Note condition authorizing drug testing have not yet been brought into force**

Proulx SCC 2010

The SCC gave some guidance… as a conditional sentence is intended to achieve punitive purposes conditions such as “house arrest” should be the norm rather than the exception.

Amend Optional Conditions

s.742.4(1) If the CS supervisor is of the opinion that a change in the optional conditions is desirable, they shall give written notice of proposed changes to the offender, the prosecutor and the Court.

Kobsar ABQB 2004

NOTE: The power of CS to change conditions should be used sparingly and for technical changes rather than lots of substantive changes.

s.742.4(2) Within 7 days of notification(a) offender or prosecutor may request a hearing(b) the court may order a hearing of its own initiative

and a requested hearing will be held within thirty days after the court received their notification from the CS.

s.742.4(3) At the hearing, the Court(a) shall approve or refuse the proposed change(b) may make any other change to the optional conditions as is deemed

appropriate by the Court

s.742.4(4) If no hearing is requested or ordered, the change will take effect fourteen days after the receipt of notification by the court and the CS shall notify the offender and file proof of the notification in Court.

s.742.4(5) Same procedure above applies to proposed changes by the offender or prosecutor as well.

Blended Sentence

Kishayinew SKCA 2010

Not possible to create a blended sentence of CS and incarceration for one offence.

Ploumis ONCA 2000

If offender is being sentenced to more than one offence, can give one sentence incarceration and one conditional provided the combined total does not exceed two years less a day.

Alfred ONCA 1998

Can’t have a combined total of two years or more… “two years less a day” refers to the GLOBAL sentence (not just for each individual sentence)…

i.e. where you have sentences be served consecutively and total length two years or more. If you had concurrent sentences it might not violate.

Subsequent Sentence while serving CS

s. 742.7(1) The running of a conditional sentence is suspended during the period of imprisonment for the other offence

s. 742.7(4) Begins to run again “upon the release of the offender from prison whether on parole/ statutory release or otherwise”

Appellate Deference

Ferguson Study 2004

Reviewed 16 CA cases where TJ had imposed CS… found that CA was deferential in 11 of the cases… so overall reasonably deferential.

Proulx SCC 2010

Decided basically on the idea of deference to the TJ…. Same standard of deference as usual, can’t just substitute a conditional sentence unless demonstrably unfit or error in principle etc.

Examples: Macdonald NSCA 2003

CS not appropriate in case of serious domestic assault b/c protection of community gives way to need for rehabilitation.

Mohamad ONSCJ 2004

Upheld TJ decision to go with jail and not CS b/c CS would not provide enough denunciation and stigma for a sophisticated stolen automobile scheme.

Bunn SCC 2000

CS upheld where offender was sole caregiver for disabled wife

LFW SCC 2000

CS upheld (SCC split) for historical sexual assault and no apparent offences since, also held dealt with alcohol problem by this point.

RNS SCC 2000

CS struck down for sexual touching of step-daughter ages 5 to 8 and jail term imposed. (this was restoring TJs decision where CA had varied jail to CS)

R(RA) SCC 2000

Jail sentence restored for sexual assault and two common assaults on employee at workplace by employer