Canadian Sentencing Process: Principles, Types, and Legal Frameworks, Law Unit 3

definition of sentencing process

the judicial determination of a legal sanction to be imposed on a person found guilty of an offence

steps of the sentencing process

Entering a conviction either through trial or plea

Sentencing hearing

Consideration of the individual's criminal record

Aggravating/mitigating factors

Consideration of oral submissions by both the crown and defence attorneys in which they outline and justify what they believe to be an appropriate range of sentencing in the particular case

The judge weighs all of these factors and takes into account what he/she is trying to achieve with a particular sentence before rendering judgement. The judge also considers the types of sentencing that have been applied in similar cases.

historically, sentencing in canada has been primarily an exercise of ___________

judicial discretion

What is the maximum term of imprisonment set by the CCC for each offence?

The CCC sets a maximum term of imprisonment for each offence, but the type and length of the sentence are at the judge's discretion.

What types of sentences can judges impose under the CCC?

Judges can impose custodial sentences or sentences in the community.

What is an exception to the judge's discretion in sentencing?

Statutorily prescribed minimum penalties require judges to impose at least the minimum sentence.

What is the minimum penalty for impaired driving according to the CCC?

The minimum penalty for impaired driving is a $600 fine.

Who has discretion over the quantum of a sentence (length, amount of fine, etc.)?

The judge has discretion over the quantum of a sentence.

in which section of the CCC are the principles and purpose of sentencing outlined?

s 718

These principles are placed in the CCC as a clear guideline to judges and a statement of principles that give direction to our penal laws and sanctions.

name the 6 principles of Sentencing

1. denunciation/retribution

2. deterrence

3. protection of the public

4. rehabilitation

5. reparation

6. responsibility

what is denunciation/retribution?

Allows the judges to take into account:

Society;s disdain for the crime committed

The offender's character and past actions

why is R v. M (C.A.), [1996] 1 S.C.R. 500

The accused pled guilty to numerous counts of S. A., incest and assault with a weapon related to sexual abuse of his children over a period of years. None of these crimes carried a maximum penalty of life imprisonment. The trial judge and the SCC agreed to a cumulative sentence of 25 year's imprisonment.

what is deterrence?

Discourage convicted offenders from repeating their behvaiour (Specific Deterrence)

Discourage other individuals from committing the same type of crime (General Deterrence)

Sentences should cause individuals to seriously consider the consequences for their actions

It is difficult to arrive at a sentence that effectively achieves both specific and general deterrence

what is protection of the public

Should be a primary concern of the judge in sentencing

Involves not only the physical protection of persons but also the protection of property, individual rights and public morality

what is rehabilitation

Reform the criminal's behaviour and restore the person to a useful life in society

This ideally should be a central purpose of sentencing however it is the most difficult to achieve

which two parts of the principles of sentencing were added later?

reparation + responsibility

what is reparation?

To repay, repair or compensate the victim or community loss and harm

what is responsibility

For the offender to acknowledge the harm done to the victim and the community

what is a concurrent sentence

A sentence that overlaps with another for a period of time (Canada)

what is a consecutive sentence?

A sentence that runs separately for one or more other sentences to be served by the same individual (United States)

7 types for sentencing options

absolute and conditional charges

probation

fines

intermittent sentences

conditional sentences

incarceration

restorative justice programs/circle sentencing

explain absolute and conditional charges

Absolute Discharge: a sentence that free the offender with no conditions and no criminal record, No qualifications required

Conditional Discharge: A sentence that frees the offender with no criminal record but with court ordered conditions that must be followed

Discharge can be asked for as long as the offence doesn't have a minimum sentence of 14 years or life or go against the public interest

advantages of absolute and conditional charges

Works well for employment and immigration

Doesn't leave you with a record

disadvantages of absolute and conditional charges

Doesn't leave you with a record and you can say no to "do you have a criminal record" at an interview

Employers may not know exactly who they are employing

explain probation

Offenders are free to go, but they are under the jurisdiction of a correctional service

Can be combined with fines and suspended sentences and conditions that are meant to rehabilitate

Last up to 3 years

advantages of probation

Offenders of small crimes are free to go, under restrictions

Keeps the jails and trials functioning

Under strict rulings

disadvantages of probabtion

Hard to start up a life for the next 3 years without the feeling of pressure?

Someone has to be watching them...

explain fines

For less serious offences

Ex. Summary convictions can get up to a $2000 fine

Can include garnisheeing wages: taking money directly from a defendant's wages under court order

Victim fine service too to help support those affected

advantages of fine

Helps support victims

Offender doesn't have to go to jail

Keeps the system running

disadvantages of fines

Victims might not feel justice

What's to stop the offender from doing it again?

Can affect their living very quickly ($2000 is no joke)

explain intermittent sentences

90 days or less, allows flexibility for judges

Sometimes still allowed to work a job?

For offences with short mandatory minimum sentences

advantages of intermittent sentences

Offender can keep their job and most livelihoods

It's a super short sentence

Inconvenient so it will disencourage further actions

disadvantages of intermittent sentences

Messes with life a little

Inconvenient

explain conditional sentences

Introduced in 1996

Prison term is less than 2 years but not in jail, in community

Allows for incarceration to be used only for the worst crimes

Similar to probation but with house arrest

advantages of conditional sentences

Saves people from unnecessary incarceration

Allows space in jails for those who truly need it

disadvantages of conditional sentences

Victims may not feel justified

Life will be interrupted

Boring

explain incarceration

Harshest punishment in Canada and the rate is very high, but has fallen due to changes made to the system (see above :)

Run by both provincial and federal

Provincial is for sentences of 2 yrs or less

Federal is for longer sentences

Thought that this is possibly not the best solution to the problem, criminals actually get more dangerous after being in jail

advantages of incarceration

Protects citizens from danger

Proper punishment for horrendous actions

Justice for victims

disadvantages

Harsh punishments

Causes more danger

Changes lives forever

explain restorative justice programs/circle sentencing

"They help settle the conflict to the satisfaction of the parties involved"

Comes from indigenous

Big discussion

Respect between everyone

Canada's justice system has a long history of discrimination against Indigenous (ex. Donald Marshall in 1983, convicted to 11 years for a crime he didn't commit, everyone was shocked)

advantages of restorative justice programs/circle sentencing

More peaceful

Allows for better conclusions to conflict

Better rehabilitation for criminals

Respects Indigenous culture

disadvantages of restorative justice programs/circle sentencing

Justice for the victims

Might not reach the safest solution

importance of r v. gladue

1999, SCC states that RJP methods are included in the Criminal Code under s. 718

Judges should consider this first before jail

importance of R v. Moses

Judge Barry Stuart of the Yukon Territories stated that a change to the sentencing system needed to happen

Major decision

Dangerous Offender Declaration:

Section 753 of the CCC allows the court to categorize the most dangerous offenders (those whose past aggressive, violent or sexual behavior establishes a pattern that is unlikely to be able to be changed) and sentence them to an indefinite period of imprisonment

Youth Sentencing:

The youth criminal justice act provides the legislative framework for Canada's youth justice system. It includes a separate sentencing regime because the needs and citations of youth are different from those of adults

Define: mandatory minimum sentence and cruel and unusual sentence

MMS: a basis of what an offender should serve for the crime they committed, found in the criminal code, can be a constraint for judges (not all crimes are the same)

CUS: over the top punishment for their actions (ex. Too long jail time or the death penalty)

How does the use of hypothetical cases test the constitutionality of mandatory minimum sentences?

Those cases don't exist and so there was no precedent set for them

Hills should have found a real case instead

In the hypothetical, something that could have never been predicted might happen

Examples of the future

What are the advantages and disadvantages of mandatory minimum sentences?

Advantages:

Basis of dealing with the crime

Everyone gets the same treatment

Disadvantages:

Not everyone is in the same situation so different people need different sentences

Reduces judicial discretion

How have the various levels of courts dealt or addressed cases relating to this issue?

Judging based off of previous cases and the hypothetical case

Asking "is this a fair sentencing?"

Lower courts - judged minimum sentencing in this situation

Appellate courts - analyze their broader impact

SCC - provides final guidance on whether they comply with the Charter

Do you believe there is a correlation between the Liberal government repeal of some mandatory minimum sentences and the increase in gang-related crime?

Yes

Sentencing has become loose and so people are willing to test that

I think it's important that there is a basis for how much someone should be sentenced to

Repeal - striking it down

Capacity in prisons would take a hit if we always stuck with mandatory minimums

What might be the potential dangers of fake case law, (generated by AI), being presented in court?

There may not be complete truth in what is shown

AI is known for making things up and not being completely perfect

can mislead judges and lawyers by relying on legal precedents that do not exist

Al legal information can confuse juries and make them trust false evidence or arguments, affecting how they assess credibility and reach a fair verdict

Undermines the rule of law and accuracy of legal decision making

Risk of fake cause law becoming accepted over time if not caught

Damages public confidence in the justice system

Could result in unfair outcomes for accused persons

How might AI driven "deep fakes" have an impact on juries?

Juries are not experienced in legal matters

Can be easily duped

creates convincing but false audio or video evidence

Jurors are more likely to trust and remember audiovisual evidence

Can distort jurors memory and perception of reality

Increases risk of wrongful convictions or acquittals

Leads to skepticism where jurors may doubt real evidence (liars dividend)

Define: liar's dividend, water marking

Liar's dividend: defendants arguing in court that the evidence against them is AI generated

Watermarking: something on the image or video to tell the court that this is AI generated

In what ways could the justice system address the challenges of AI in the courtroom?

Strict limits

Rules to follow

General understanding of use

use expert witnesses to analyze digital evidence,

Impose stronger penalties for presenting false or Al manipulated evidence

Develop standardized verification systems (e.g., watermarking)

Provide clear jury instructions on how to evaluate Al related evidence

Carefully Balance probative value vs. Prejudice when admitting evidence

What defence was used in the Brown case?

Extreme intoxication to the point of Automatism

What is Section 33.1 of the CCC and why is it "complicated and controversial"?

Talks about self-induced extreme intoxication

The offender took the drug to a point that he probably knew was too far but then he had no control over his actions.... So how do you punish it?

Also not really well worded

Prevents the accused from using extreme intoxication as a defence

Goes against the charter

How did the SCC rule in this and two similar cases? What was their rationale? Do you support the unanimous decision?

Sullivan and Chan cases - 2 men consumed drugs and then stabbed their family members, in state of psychosis

Decided that section 33.1 was too unconstitutional and that it counts as a defence for Brown's case

I feel that there should be some sort of fine and restrictions on him to help give peace of mind to the family and change his actions for the future but i don't think it deserves major jailtime

How could parliament enact legislation to "protect victims of violent crime committed during extreme intoxication"?

I feel that there should be some sort of fine and restrictions on him to help give peace of mind to the family and change his actions for the future but i don't think it deserves major jailtime

In what way was an expert witness used in the Brown case?

Used to determine his level of intoxication and how much punishment is constitutional

Is it possible for the legal system to balance the rights of both the accused and victims and still achieve justice?

I feel that there should be some sort of fine and restrictions on him to help give peace of mind to the family and change his actions for the future but i don't think it deserves major jailtime

What is the Supreme Court of Canada?

The Supreme Court of Canada is Canada's highest court. It is the final court of appeal for all litigants,

whether individuals, organizations or government. Its jurisdiction includes both the civil law of the

province of Quebec and the common law of the other provinces (including Ontario) and the

territories. The Supreme Court has jurisdiction over disputes in all areas of the law, including

constitutional law, administrative law, criminal law and civil law.

What are the Provincial and Federal Courts?

Each Canadian province and territory has it own court system, with trial courts, (provincial/territorial

court and superior court) and a Court of Appeal or appellate division that hears appeals from the

lower courts (with the exception of Nunavut, which only has one level of trial court). Ontario has the

Ontario Court of Justice, the Superior Court of Justice, and the Court of Appeal for Ontario.

What is the Federal Court System?

Parallel to the Ontario court system and the court systems of other Canadian provinces and

territories, is the Federal court system. The Federal Court of Canada hears certain matters of federal

concern that are set out in statute, including claims against the Government of Canada and civil suits

in federally-regulated areas such as immigration, and intellectual property (e.g. copyright). The

Federal Court of Appeal hears appeals from the Federal Court of Canada, the Tax Court of Canada

and the Immigration and Refugee Board and other Boards created by the Federal government. In

some cases, parties may be able to sue in either the federal court system or the Ontario court system.

Describe the Structure of the courts of Canada

COL: What does Substantive Law identify?

The rights and duties of a person or level of government.

COL: What does Procedural Law outline?

The methods and procedures that must be followed in enforcing substantive laws.

COL: What does Substantive Law define in the context of criminal code?

The nature and substance of a crime.

COL: What does Procedural Law dictate in criminal code?

How arrests, bail hearings, and trials must happen, protecting the rights of the accused.

COL: name the 11 categories of law

substansive

procedural

domestic

international

public

private

family

contract

tort

estate

property

COL: What is Domestic Law?

A law that governs activities within a particular country.

COL: What is International Law?

A law that has jurisdiction in more than one country.

COL: What can Domestic Law's area of influence be? And give example

Firearms Act (has no jurisdiction outside Canada).

COL: What can International Law's area of influence be?

Two or more countries share the law, such as treaties.

Sometimes can cover a whole area

COL: What is Public Law?

The area of law that regulates activities between a state and its citizens.

COL: What does administrative law govern and what is it under?

Relations between individuals and government agencies, boards, and departments.

under public law

COL: What is criminal law and what is it under?

The area of law that prohibits and punishes behavior that injures property and society as a whole.

COL: What is Private Law?

The body of law that regulates disputes between individuals, businesses, and organizations, sometimes called civil law.

COL: Who is the plaintiff in civil law?

The party suing.

COL: Who is the defendant in civil law?

The party being sued.

COL: Who is the defendant in criminal law?

The person charged with an offense.

COL: What is Family Law?

Family Law: the area of private law that governs relations among

members of a family

ex. laws for marriage, divorce, child support

COL: What is contract law?

Contact Law: the area Of private law that governs agreements between people or companies to purchase or provide goods or services

> business related laws

> ex. Colleen vs. Ready to Ride (company failure, this law states she can sue)

> written or verbal

COL: What is Tort Law?

Tort Law: area of private law covering civil wrongs + damages that one person or

Company causes to another, when the wrongs or damages arise in dependantly

of a contractual relationship

> individuals suing companies or (more often) person v. person suing

COL: What is estate law?

area of private law that regulates wills and probates and determines what happens to a person's property after death

> ex. wills

COL: What is property law?

area of private law that applies primarily to the buying, selling and renting of land and building and their use

> ex. real estate, belongings (jewelry [tangible], stocks [intangible], etc), buy/rent of land [tangible]

WIC: What is the definition of crime?

Any act or omission, the doing of which is offence under federal legislation

WIC: What is a crime?

the federal gov controls criminal law and only parliment can enact laws making certain conduct crimes

eg. criminal code of Canada, youth criminal justice act, controlled drugs and substances act, the income tax act, the Canada labour code

each identifies the criminal act and makes rules for prosecution and punishment

provincial statutes also create offences for certain conduct but they are not true criminal offences

provincial offences or quasi-criminal offences

> eg. Careless driving (highway traffic act), drinking under age (liquor licence act), radial sales tax act

WIC: What is the definition of liability?

legal term indicating that a person is responsible for his/her conduct

WIC: What is civil liability?

a person's legal responsibility to pay compensation to another person who has suffered a loss because of the violation of private law

each individual has the private right to seek a remedy in the courts if he/she has suffered a loss because of wrongful conduct

WIC: What is criminal liability?

a person's responsibility for conduct that can lead to sanctions imposed by the state

eg. fines, probation, conditional sentence ("house arrest"), intermittent sentence ("weekends"), imprisonment

LEC: What is required for an act to be considered a crime?

The accused must have committed an illegal act (actus reus) and had the required state of mind (mens rea).

LEC:What does 'actus reus' mean?

Latin for 'the guilty act'; it refers to the physical component of the crime.

LEC:What does 'mens rea' refer to?

The mental element ('the guilty mind') that accompanies the commission of the actus reus.

LEC:What is the subjective standard in criminal law?

It concerns the accused's state of mind (intent, knowledge, recklessness) at the time of the act.

LEC: What is the objective standard in criminal law?

It involves determining what a reasonable person would have understood or foreseen in the circumstances.

LEC: What is absolute liability in criminal offences?

Offences that only require proof of an unlawful act or omission, without needing to prove intent.

LEC: What is strict liability in criminal offences?

Offences that require proof of an unlawful act or omission but allow the accused to prove 'due diligence' as a defense.

LEC: What must the Crown prove in cases requiring mens rea?

The Crown must prove intent beyond a reasonable doubt.

LEC: What are regulatory offences?

Non-criminal violations of federal or provincial statutes related to business, health and safety, or the environment.