– Imposing a sentence is a difficult thing to do as there must be a balance between what is best for society and for the guilty party
– After sentencing the party can appeal in a higher court
– There are two ends to the pendulum . . . punish them … and treat them (especially for non-violent offences)
– The judge may order a probation officer to prepare a pre-sentence report which sets out the individual’s circumstances, and is from interviews with the offender, people who know the offender.
– The pre-sentence report is not always used, as often the judge can make a decision without knowing about the accused’s personal history ( either minor or very major cases)
– Defence and Crown speak to the sentence, and at this time the crown can bring up past offences. The convicted may also make a statement.
– The judge must make reference in the sentence to the Criminal code which specifies the penalties available.
– for those sentences less than 14 years Canadian judges can choose a penalty in the range of 0 – 14, and these decisions are often based on previous similar cases, but it is not necessary.
– The judge can take into account time spent in custody, potential for rehabilitation, and victim impact statements
– Some jurisdictions have experimented with other forms of sentencing, circle, traditional native etc
– The 4 objectives to punishment are deterrence, retribution rehabilitation or resocialization and segregation with the ultimate purpose of protection of society
– Many of these objectives are criticized as being ineffective. People still commit crimes, no matter the consequences. .. and the rehabilitated return to prison .. . recidivism rate
– Deterrence is when people choose not to commit a crime because of the penalty that will be imposed
– Often used for crimes that are being looked on as increasingly more serious, streetracing, and DUI
– Retribution is an eye for an eye, real punishment
– Rehabilitation and resocialization is used to make criminals useful members of society. Provides job training medical help, counselling etc. Many programs are in place to ease the criminal back into society
– Segregation has the purpose of isolating the criminal and protecting society. The Dangerous offender is one who will never be released because their crimes are so horrendous, and the chance of resocialization is almost nothing
– Sentencing usually means incarceration but the cost of incarceration is prohibitive and more diversion programs are being implemented
– Absolute or Conditional Discharge can only happen in cases where the penalty is less than 14 years and where no minimum sentence has been defined in the CCC
– For both there is no conviction recorded against the accused, and is generally granted when it is the offender’s first offence, or when there is a publicity factor that constitutes punishment enough
– An absolute Discharge is effective immediately with no conditions attached. A conditional discharge required that the offender follows a probation order which outlines the rules, which if followed for the required period, will allow the offenders record to be erased at a future date.
– Suspended sentences take into account the age and character of the offender, and the offence itself but cannot be used when there is a minimum sentence imposed by the CCC
– There is still a record of a conviction, and probation may be imposed for up to three years, as well as fines and sentences of up to 2 years less a day. Probation requires the offender to meet with an officer, avoid alcohol, no weapons, make restitution, remain within a certain jurisdiction, and make efforts to gain employment
– Suspension of a Privilege is when you lose a privilege like a licence to drive, or a licence to serve liquor. Always related to the offence.
– Binding-over is ordered when a victim feels threatened and the court orders the offender to keep the peace, and behave for a period of time up to 12 months with or without sureties and prison can be imposed for up to one year
– Restitution or Compensation is intended to reduce the harm to the victim, and can cover medical expenses, damage to property and emotional damage. It can be in the form of work or money.
– Community Service Orders require that the offender do volunteer hours to their community to repay their debt and puts the offender in a position of having to become more a part of the community and thereby less likely to offend against it
– Deportation can only occur for those who are not Canadian citizens. Extradition under certain circumstances allows a Canadian citizen to be sent back to another country where they have committed a crime.
– Fines are imposed for summary offences and are generally less than $2000 but may be more, and if the minimum sentence in the CCC is more than 5 years it may be in addition to incarceration. Offenders have 14 days to pay the fine and there are fine option programs available for those whom cannot pay, and need time to work the fine off.
– Imprisonment is the most common sentence and minimum sentences are constantly changing in the CCC according to public concerns
– 30 days or less are usually kept in a local detention centre, 2 years less a day are in a provincial facility, and anything 2 years or more is Federal (indictable offences)
– No offence requiring more than 5 years incarceration can be replaced by a fine
– If an offender is accused of more than 2 offences at the same time, they can be given either a concurrent sentence or a consecutive sentence (longer) The decision is based on a principle of totality. 24 charges for the same offence will be given concurrent imprisonment.
– Intermittent sentences or weekend incarceration may be granted by the judge based on the pre-sentence report, but can only be used when the sentence is less than 90 days and would include a probation sentence with conditions
– Dangerous offenders have committed serious personal injury involving use or attempted use of violence. The Crown needs to prove a pattern of aggressive behaviour that is unlikely to change. A person who is indifferent to the consequences of their actions may be deemed to be a dangerous offender. Psychiatrists must testify at the trial and the offender may be confined for 60 days for observation.
– An indeterminant sentence can be used to hold an offender in a less serious crime, until they are deemed to be safe to return to society.
– Capital punishment has not been part of our legal system since 1962 when all death penalties were commuted to life imprisonment, but in 1976 the death penalty was abolished the death penalty.
– There has been much argument over capital punishment, and the possibility still exists for cases under the National Defence Act, but hasn’t been used.
– Victims of crime are given assistance through community organizations.
– Victims have access to release dates, review dates and dates of all hearings, destination of the offender on release.
– The Criminal Injuries Compensation Fund has been in place since 1973, and uses public money to compensate a person who is injured when a crime is committed. The injured person has to file an application within a year of the injury and the application is heard by a provincial panel.
– The Victim Assistance fund sets up education, counselling and other programs for victims of crime. Part of this fund is provided by convicted offenders who pay a surcharge on their fines, no more than $10000
– Appeals were introduced in 1923 and sometimes result in the correction of serious injustices and establishment of precedents. The purpose is to have the decision of the trial judge (and jury) reviewed and approved by another judge in the Courts of Appeal or the Appellate Court. The accused is called the appellant, and the other party is called the respondent in these cases.
– Appeals of Summary Convictions follow 2 possible courses of action. They can appeal based on a question of law, or based on mixed question of law and fact or jurisdiction. The appeal may be brought by either the crown or the prosecutor. These frequently occur based on evidence which have not been allowed in court.
– The appeal court rehearing is based on the records of the previous trial, not new information. The court may decide on a new trial as opposed to overturning the previous trial.
– For Indictable Offence Decisions the appeal is based on a question of law, fact (or a mixed question) or a question which appears to the court to be sufficient (as new evidence) They can also appeal against the sentence, but the crown can appeal based on law, and order that quashes and indictment or stays proceedings, or the sentence. The trial records are called, and both parties prepare a factum which summarizes each party’s position. Generally fresh evidence will be dealt with only if it would change the outcome of the trial, and the court makes a decision by majority vote of either 3 or 5 judges
– Appeals to the Supreme Court occur if there is not a unanimous decision, when an appeal was overruled, when the accused was tried with another person who was acquitted, or when the accused was found not criminally responsible.
– Appeals can be immediate or deferred. This is because decisions by the appellate court become legal precedent. Under the rule of stare decisis which means to stand by a previous decision lower courts are required to stand by the decision of the appellate court
– Parole is granted when a prisoner is allowed for an early release based on good behaviour, and indications that the offender has a low likelihood of recidivism. If they break any of the rules of their parole, they are returned to prison.
– Correctional Services of Canada are responsible for incarceration, case prep for parole applicant, supervision of all offenders granted parole, and supervision of all persons released from all institutions during or before release as all probation services.
– There are 4 levels of penitentiary institutions . . . correctional institutions . .. maximum, medium, minimum, and community corrections centres. About 48% are in provincial, 50% in federal and 2% in lesser settings
– There is a broad range of programs available in penitentiaries for rehabilitation of inmates, and plan is developed for each individual inmate.
– The inmates are offered a daily allowance used at the canteen, and 10% is put into a savings account for the inmate . ..
– Parole is intended to return an inmate to society in prep for an unsupervised release. The NPB supervises this for all but Quebec, Ontario and BC.
– The review date for parole eligibility is set at the time of sentencing. At review date there is a report compiled that details the offenders efforts at rehabilitation during imprisonment, a personality assessment, treatment, the offenders ability to understand their crime, availability of a place to live and job possibilities.
– The main considerations of parole are the risk to society, and the ability of the offender to be a contributing member of society
– Temporary absence is allowed for escorted and unescorted absences for family emergencies like funerals, work release and day parole
– Unescorted absences are allowed for offenders who have reached the halfway mark in their sentence and will be granted for funerals, religious holidays or to obtain medical treatment. For certain offences, the NPB needs to grant permission.
– Work Release is granted as a part of the rehabilitation process, or to do community process
– Day Parole allows an offender to leave for the day but must return to the institution for nights, and is allowed for inmates to work or attend a learning institution and is allowed for the 6 months prior to full release.
– Parole for murder is a different. For first degree murder requires 25 years. Second degree murder allows 10 to 25 years. Both become eligible for unescorted absences 3 years before full parole eligibility date. Those sentenced to more than 15 years can have a Superior Court judge with a jury (2/3 vote) to advance eligibility
– First time non-violent Offenders can ask for an accelerated review provided that the judge did not set parole at half the sentence
– Statutory release happens after an offender as served 2/3 of their sentence if they have not previously been released on parole (not for life sentences or indeterminate sentences)
– The Federal government has the right it grand a royal Prerogative of Mercy. A free pardon is granted where the evidence shows that the person is innocent, and an ordinary pardon is granted on compassionate grounds. ( Donald Marsall spent 11 years in jail)
– Criminal records are very important. 2.5 million in Canada have a criminal record. For some the record is only an embarrassment, but may mean loss of job opportunities like bondable jobs.
– With an Absolute discharge (1 year ) or Conditional discharge 3 years) the RCMP remove the charge from their computers, and a person can be granted a pardon through the NPB 5 years after a sentence for an indictable offence, or 3 years after a summary conviction. These are not erased from the records and will come back to haunt you if you return to the court system.