Sentencing

What is sentencing in Canadian criminal law?

The judicial determination of a legal sanction upon a person convicted of an offence.

Who can impose a sentence in Canadian law?

Only judges—parole boards cannot impose or modify sentences.

What is the fundamental purpose of sentencing (s.718)?

To impose just sanctions that contribute to a just, peaceful, and safe society.

Name 3 key objectives of sentencing under s.718.

1. Denounce unlawful conduct (718(a)) 2. Deter the offender and others (718(b)) 3. Rehabilitate the offender (718(d))

What does s.718.1 state?

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

What is proportionality in sentencing?

Sentences should be individualized, subjective, and custom-tailored, matching the severity of the crime.

How do judges apply proportionality in sentencing lengths?

Through concurrent or consecutive sentences using the totality principle.

What is an absolute discharge?

A finding of guilt with no conviction registered; no criminal record after 1 year.

What is a conditional discharge?

Guilt without conviction, includes probation; record removed after 3 years if completed successfully.

What is probation?

A sentence up to 3 years, can be stand-alone or with another sentence; breach = up to 4 years in prison.

What is restitution vs. a fine?

Restitution: Offender pays victim; Fine: Offender pays the state.

What is a conditional sentence?

Custodial sentence served in the community (<2 years); includes conditions like curfews or community service.

What is intermittent imprisonment?

Sentence served part-time (e.g., weekends), for sentences 90 days or less.

What is a Long-Term Offender?

Repeat offender with a high risk of reoffending but potential to control risk; 2+ years imprisonment + up to 10 years supervision.

What is a Dangerous Offender?

Individual posing ongoing threat; can be given an indeterminate sentence with parole eligibility after 7 years.

What percentage of Harper-era legislation focused on sentencing?

61% of criminal justice-related policies.

What was a key trend in Harper’s sentencing laws?

Tough on crime—longer, more punitive sentences and more mandatory minimums.

What restrictions did Harper’s government place on conditional sentences?

Prohibited for indictable offences with a max of 14 years/life and certain offences like drug trafficking or bodily harm.

What did the 'Faint Hope Clause' allow?

Early parole application for life sentences (repealed in 2011).

What case struck down consecutive parole ineligibility for multiple murders?

R v. Bissonnette (2022 SCC 23).

What change did the Truth in Sentencing Act introduce?

Removed judicial discretion to offer more than 1:1 credit for pre-trial custody, except in rare cases (max 1.5:1).

How many MMS did Canada have after Harper’s reforms?

Estimated increase from 40 to 80+.

What are the 4 types of MMS?

1. Life (e.g., murder, treason) 2. Firearms offences 3. Repeat offenders 4. Hybrid offences (if Crown proceeds by indictment).

List 2 arguments for MMS.

1. Promotes deterrence 2. Ensures consistency and transparency.

List 2 arguments against MMS.

1. Violates proportionality and individualization 2. Minimal deterrent effect—many are unaware of MMS.

What is the 'reasonable hypothetical' analysis in MMS?

Courts assess whether MMS would be grossly disproportionate for a hypothetical offender.

What issue was addressed in R v. Summers (2014 SCC)?

Credit for pre-trial custody under Truth in Sentencing.

What did the SCC decide in R v. Summers?

Judges may apply 1.5:1 credit to ensure fairness and acknowledge poor pre-trial conditions.

What was the key issue in R v. Lloyd (2016 SCC)?

Constitutionality of a 1-year mandatory minimum for repeat drug trafficking under CDSA.

What did the SCC decide in R v. Lloyd?

MMS was unconstitutional when applied to a hypothetical less blameworthy offender.

What is a potential solution to Canada's inconsistent sentencing?

Creation of sentencing guidelines.

Who would participate in creating sentencing guidelines?

Parliament, judges, criminal justice actors, and lay members.