Chapter 9: Sentencing Options

Over the past three decades, significant studies and commissions in Canada have reshaped and influenced the landscape of sentencing options available within the criminal justice system.

Key Groups Influencing These Studies:

  • The Ouimet Committee (1969): Focused on examining the judicial process and recommended reforms that led to greater leniency in sentencing, aiming to reduce the stigma of a criminal record.

  • Law Reform Commission of Canada (1976): Advocated for sentencing policies that reflect rehabilitative goals and emphasized the need for a more humane justice system.

  • Canadian Sentencing Commission (1987): Provided comprehensive recommendations aimed at balancing the interests of the offender, society, and the justice system itself.

The acceptance of the principle of restraint highlights the emphasis on exploring non-custodial options, which led to the introduction of innovative alternatives to traditional sentencing. These include legislative changes that enable the use of discharges, intermittent sentences, and conditional sentences, thereby allowing judges to opt for less severe measures in appropriate cases.

Judges across Canada have creatively utilized probation orders to incorporate community service orders and electronic monitoring as part of their mandate, thus allowing for more rehabilitative approaches to sentencing.

The chapter's comprehensive objective is to delve into the available sanctions based on section 718 of the Criminal Code, which details the punitive, incapacitative, rehabilitative, or reparative nature of these sanctions, creating a multi-faceted approach to sentencing.

Diversion
Definition of Diversion:

Diversion is not formally recognized as a sentencing option; instead, it redirects individuals away from the criminal process altogether. This approach serves to address underlying issues without conviction or sentencing.

Objectives of Diversion:

  • Hold Offenders Accountable: Diversion aims to hold offenders accountable through various mechanisms, such as community service or restorative justice practices (e.g., apologies to victims).

  • Reduce Recidivism: By addressing root causes of offending behavior, diversion programs seek to reduce the likelihood of future offenses.

Example Forms of Diversion:

  • Police Warnings: Informal admonitions given by law enforcement to minor offenders.

  • Prosecutor Charge Withdrawal: Charges may be dropped upon successful completion of specific conditions.

  • Community Diversion Programs: Initiatives aimed at rehabilitating offenders through community service and engagement rather than detention.

Legislation:

The introduction of alternative measures for adults under section 717 of the Criminal Code (1996) further formalized diversion initiatives that promote a restorative justice model.

Criteria for Diversion Under Section 717:

To qualify for diversion, the offender must:

  • Consult with a Lawyer: Ensuring informed consent and understanding of their rights.

  • Admit Responsibility: An acknowledgment of their actions is necessary for taking part in diversion.

  • Consent to Participate: Offenders must willingly agree to engage in the diversion program.

  • Sufficient Evidence: The prosecutor must have the evidence needed to pursue a conviction should the diversion fail.

Absolute and Conditional Discharges
Discharges Overview:

Discharges serve as a remedy to combat the negative lifelong consequences associated with a criminal record. Recommended by the Ouimet Committee, discharges allow for a more lenient response to certain guilty findings.

Types of Discharges:

  • Absolute Discharge: No conviction is recorded, and the individual is treated as if they were acquitted.

  • Conditional Discharge: A set of conditions, such as good behavior or probation, are imposed. Breaching these conditions may lead to the revocation of the discharge.

Legal Framework:

This framework was enacted in 1972, allowing for discharges even when a guilty finding exists, provided certain criteria are met.

  • Excluded Offences: Individuals convicted of offences with minimum sentences or those liable for life imprisonment are not eligible.

Public Interest Considerations:

The decision to grant a discharge must consider the public interest, carefully balancing individual circumstances against the needs of societal safety and deterrence.

Probation
Brief History of Probation:

The concept of probation originated in 19th-century England and America as a progressive alternative to incarceration, focusing on rehabilitating offenders while maintaining community ties.

Current Framework:

According to section 731 of the Criminal Code, probation may be ordered under specific conditions: the offender must not be sentenced to a minimum prison term, and probation conditions must be compatible with the individual's case.

Eligibility:

Probation orders display a degree of flexibility, with provisions that permit the setting of maximum durations and tailor conditions to ensure accountability among offenders.

Conditions of Probation:

  • Mandatory Conditions:

    • Keep the peace and be of good behavior.

    • Appear before the court when required.

  • Optional Conditions:

    • Reporting to a probation officer at regular intervals.

    • Completing community service or attending treatment programs.

Fines
Definition and Historical Context:

Fines are often perceived as a more lenient penalty compared to imprisonment, but they can effectively serve as a deterrent and a form of sanction that allows offenders to remain in the community while facing consequences.

Process of Imposing Fines:

Courts must carefully ensure that fines are proportional to the offense and based on the offender's ability to pay. A means inquiry is mandatory to evaluate their financial situation prior to finalizing a fine.

Consequences for Defaulting on Fines:

Failure to pay fines can trigger various enforcement mechanisms, leading to penalties such as the loss of licenses or civil judgments. Modern scrutiny around the issue of imprisonment for non-payment emphasizes the necessity of exploring all available alternatives before resorting to jail time.

Conditional Sentences of Imprisonment
Introduction and Rationale:

Conditional sentences enable offenders to serve a prison sentence within the community under specific conditions, promoting rehabilitation rather than incarceration. This approach aims to reduce reliance on jails while ensuring that individuals remain accountable.

Requirements for Conditional Sentences:

Conditional sentences are typically available to non-violent offenders who face incarceration of less than two years. The judge must be satisfied that issuing such a sentence will not compromise community safety.

Supreme Court Interpretations:

Landmark rulings such as R. v. Proulx have reinforced the flexibility and discretion judges have in applying conditional sentences, affirming that they can serve as both punitive and rehabilitative measures. This research emphasizes the adaptability of conditional sentences across a variety of offenses, always considering the particular circumstances surrounding each case.