Chapter 9: Sentencing and Appeals

Section - indicates a sentence should be made as soon as practicable after finding of guilt

720(1)

Sentence may be delayed with consent of defence and Crown to permit offender to do what

attend treatment program

Code section that allows delay of sentencing for treatment program

720(2)

Treatment program must be - approved and - supervised

provincially

judicially

Section 722.2(2) allows sentencing delay for

victim input

Section 723 allows both - and - to make submissions with respect to the - at the sentencing hearing

crown and defence

facts

At sentencing hearing, any - evidence is admissible subject to judge’s overriding discretion and subject to - of Crown or defence

relevant

objection

Hearsay (is or is not) admissible during sentencing per section -

is

723(5)

At sentencing, court may - witness to appear to give - or - court in determining appropriate sentencing

compel

evidence

assist

Hearing that takes place when facts are in dispute during sentencing

Gardiner Hearing

Burden of proving a fact at a Gardiner hearing belongs to

party wishing to rely on the fact

Gardiner hearing codified under section

724(3)

If facts are not in dispute Crown and defence may proceed on

agreed statement of facts

PSR stands for

pre-sentence report

PSR can be requested by

sentencing court

crown

defence

PSRs allowed for under

s 721(1)

PSR usually contains information on

age, character

attitude towards offence

degree of acceptance of responsibility

previous criminal record

history of alternative measures

other information requested

Purpose of PSR

provide court with detailed background of offender

Defence may want to request PSR when

Crown is seeking incarceration and defence is seeking non-custodial sentence

Section - allows for victim impact statement

722(1)

Court can grant adjournment to allow victim to prepare statement as long as

adjournment will not interfere with administration of justice

T/F: if victim has not prepared a statement they can still provide evidence at sentencing hearing

true

Section - allows the victim to read their statement behind a screen and it will broadcast via CCTV

722(6)

Sentencing judge gives more weight to joint recommendation when there is

substantial quid pro quo

The court may stray from the joint recommendation, even if there is a quid pro quo when sentence is or would

unfit

unreasonable

bring administration of justice into disrepute

be contrary to public interest

Fundamental principle of sentencing is to - and - according to section - of the Code

promote respect for the law

maintain just, peaceful, safe society

s 718

Six objectives of sentencing

general/specific deterrence

segregation

responsibility

rehabilitation

denunciation

reparation

General deterrence

to discourage the public

Specific deterrence

to discourage the offender

Segregation

separate offender from society

Responsibility

hold offender accountable for actions

Rehabilitation

reform offender through treatment/programming

Denunciation

condemn/demonstrate disapproval of offence or conduct

Reparation

have offenders make amends for harm

For offences against children, peace officers, vulnerable persons, animals Code mandates priority be given to which sentencing objectives

deterrence

denunciation

Sections - of the code mandate priority to deterrence and denunciation for offences against children, peace officers, vulnerable persons, animals

718.01-718.04

Vulnerable person (does or does not) include one who is Aboriginal and female under section -

DOES

718.04

Section 718.04, including Aboriginal and female as a vulnerable person was introduced after passage of - following recommendations of - and concerns noted by SCC in case of -

Bill C-75

National Inquiry into Missing and Murdered Indigenous Women and Children

R v Barton

Sentencing must be - to the - and degree of - of the offender

proportionate

seriousness

responsibility

Sentence must be - to the offender even after - is considered

individualized

parity

Section - outlines additional sentencing principles and includes a list of -

718.2

aggravating factors

Section 718.2(b) references parity stating

similar sentences should be imposed on similar offenders for offences under similar circumstances

In addition to parity, section 718.2(b) mentions - noting that …

restraint

less restrictive sanctions considered before deprivation of liberty

Aggravating factors

increase the severity of the sentence for the offender

Aggravating factors include

motivation of bias, prejudice, or hate

intimate partner/family member abuse

abuse of a minor

abuse of position of authority

impact on the victim

involvement with a criminal organization

terrorism

offender was on conditional sentence, parole, unescorted temporary absence

Mitigating factors

reduce severity of sentence

Mitigating factors may include

early guilty plea

remorse

counselling/treatment

lack of criminal record

age

background

formal apology to victim

restitution prior to sentencing

gainful employment

honest but mistaken belief actions were legal

When might substance abuse be a mitigating factor

if completely out of character and not a repeating pattern

Section - of the Code indicates available sanctions other than - should be considered with particular attention to - of Aboriginal offenders

718.2(e)

imprisonment

circumstances

Supreme Court Case that established application of s 718(2)(e)

R v Gladue

718.2(e) was created by - to address - of Indigenous offenders in the prison system

Parliament

overrepresentation

Supreme Court Case that confirmed Gladue principles

Ipeelee

Absolute discharge

guilty but discharged without probation order or conditions

no conviction

Conditional discharge

guilty but discharged with conditions

no conviction

Absolute and conditional discharges found in s - of the Code

730

Sentencing court may impose absolute or conditional discharge for offences that do not include - and if it is in - and not contrary to -

minimum punishment or are not punishable by 14 years’ or life imprisonment

offender’s best interest

public interest

T/F: discharge is equivalent to conviction

false, is not

Discharges are typically granted only if

offender is appearing for the first time

offence is minor

Section - gives courts the power to impose fines in addition to other sanctions

734(1)

Why might the Crown prefer a fine to be part of a probation order

easier to monitor and enforce if fine is not paid

Section 734.1 says fine order must set out

amount

manner of payment

time by which fine must be paid

other terms court deems appropriate

Copy of fine order provided to offender and must explain

payment conditions

fine option porgram

Section 736(1) allows offender to - for work performed

earn credit toward the fine

Non-payment of fines can be enforced as a

civil court judgment

Court can issue a - for offender in default of payment

warrant of committal

Orders for restitution can be made for

damage, loss, destruction of property

pecuniary damages

basic expenses to intimate partner/children

costs to re-establish id and credit

expense to remove intimate image from internet

Victim surcharge is in section - of the code

737(1)

Surcharge amount

30% of any fine imposed on offender

If no fine is imposed, victim surcharge amounts will be

$100 for summary conviction

$200 for indictable offences

If sentencing judge excuses offender from victim surcharge they must

provide reasons on the reocrd

Conditional sentence

sentence of imprisonment of two years or less served in the community

Offender under conditional sentence must abide by - for - and is closely monitored by -

conditions imposed by court

duration of the sentence

supervisor

Conditional sentences not available when offence has/is

mandatory minimum

punishable by max of 14 years or life

Conditional sentences not available for offences involving these 3 things or is

bodily harm

drugs

weapons

punishable by minimum prison sentence

Compulsory conditions include

keep peace and good behaviour

appear before court when required

report within 2 working days or as directed and as required

remain in court jurisdiction

notify court/supervisor of name or address or employment changes

R v Duncan established the

Duncan credit

R v Duncan

ONCA ruled when there has been harsh pre sentence incarceration conditions, courts have discretion to provide credit beyond than the 1.5 day limit

R v Marshall established that for Duncan credit to apply

conditions had to be exceptionally punitive

Parole board governs offenders serving

two years less one day

Inmates are automatically considered for parole after

serving 1/3 of their sentence

Offenders on parole are assigned a

probation and parole officer (PPO)

PPO’s role is to

help transition back to community

connect them to resources

monitor compliance

CPIC

Canadian Police Information Centre

Record suspension

sets aside criminal record

removes conviction from CPIC

does not erase conviction

Waiting period for record suspension

5 years for summary

10 years for indictable

Application for record suspension is made to

Parole Board of Canada

Defendant or Crown can appeal the following

sentence

verdict of unfit to stand trial or NCRMD

Defence can appeal

conviction or order

Crown can appeal

order staying the proceedings

order dismissing an information

Notice of appeal must be filed

within 30 days of conviction