Deciding on a punishment, also called sentencing, is the step in a criminal proceeding when the judge punishes the person found guilty of having committed one or several criminal offences. Under the Criminal Code, every person found guilty of a criminal offence must be sentenced.

The judge decides what sentence to hand down, whether there was a trial with a jury or without, a guilty verdict following the trial, or a guilty plea.

To learn more about sentencing, we invite you to read this Infosheet and to consult CôtéCour for an overview of the Superior Court, Criminal Division and the Court of Québec, Criminal and Penal Division.

The Criminal Code sets out the purposes of sentencing:

• to protect the public;
  
• to maintain a just, peaceful and safe society;
  
• to encourage respect for the law;
  
• to deter the offender and other persons from committing offences.

The court also has the duty to encourage the offender’s reintegration into the community. The sentence must promote a sense of responsibility in offenders, and an acknowledgement of the harm done to the victims and to the community.

As well, the sentence must provide reparations to the victims or the community for any harm suffered.

Under the Criminal Code, judges must take various factors into account when handing down a sentence. First, the judge must abide by the minimum or maximum sentences provided for each offence. The court is authorized to impose a lighter sentence than the maximum one.

The judge must impose a sentence that is proportionate to the gravity of the offence committed and the offender’s degree of responsibility, given the particular circumstances of the case. This is the golden rule in sentencing.

For example, Maude is found guilty of shoplifting for the first time. She stole a $50.00 shirt from a department store. She regrets her actions and apologizes to the store management. A two-year prison sentence would be much too harsh and the judge will, for example, fine her $200, a much more reasonable sentence in the circumstances.

Yes. The law provides the maximum sentence the court can impose for each offence. As a general rule, the maximum sentence is only imposed for the most serious of offences committed under the worst circumstances.

The maximum sentence under the Criminal Code for a summary conviction offence is a fine of $5,000 and/or six months in prison (with some exceptions, such as breach of probation). However, the maximum fine for a legal person (i.e. a company) is $25,000.

There is no maximum fine for indictable offences. However, the Criminal Code does provide a maximum prison sentence for each offence. For example, a person found guilty of:

• criminal negligence causing death, is liable for a maximum of life imprisonment;
  
• dangerous driving causing death, is liable for a maximum of 14 years imprisonment;
  
• sexual assault, is liable for a maximum of 10 years imprisonment.

To learn more about the difference between a summary conviction offence and an indictable offence, please consult the Infosheet entitled Introduction to criminal and penal law.

For certain types of offenses, the law provides a predetermined minimum sentence as well as the predetermined maximum sentence that it always supplies. The judge cannot give a person a lesser sentence than the minimum mandatory sentence.

In Canada, there are forty some offenses for which the Criminal Code imposes a minimum mandatory sentence. These offenses are classified into three large categories: sexual offenses against children, impaired driving, and crimes committed using a weapon, especially a firearm.

A few examples:

• A person found guilty for the first time of armed robbery must be sentenced to at least 4 years in prison (and this, even if his weapon was a fake!).
  
• A person found guilty of having invited a child of less than 16 years of age to touch him for a sexual purpose must be sentenced to at least 45 days in prison.
  
• A person found guilty of murder must be sentenced to life imprisonment.

Of course! The court must examine the following factors to arrive at a fair and appropriate sentence:

• the gravity of the offence;
  
• the victim impact statement, if any;
  
• the circumstances of the offence.

The judge will also consider the offender’s personal situation and can consult a pre-sentencing report prepared by a probation officer to learn more about the offender, if one exists. This document is prepared at the request of the judge or the parties and contains information about the offender, including his family history, education, personal characteristics, activities, mental and physical health, personality, etc.

In addition to cases where there are previous convictions for similar offences, the judge can impose a heavier sentence if there are aggravating circumstances.

The Criminal Code describes which factors shall be considered aggravating circumstances:

• the offence was motivated by prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation. For example, the court must be more severe on an individual who vandalized a Jewish tomb if the evidence demonstrates his act was motivated by anti-semitism;
  
  
• the offence committed constitutes abuse of the offender’s spouse or child. For example, the court must be more severe on an individual found guilty of sexually assaulting his own children;
  
  
• the offence constitutes abuse of a position of trust or authority in relation to the victim. For example: an individual took advantage of his trusted position in his workplace to steal from his employer;
  
  
• the offence was committed for the benefit of, at the direction of, or in association with a criminal organization. For example, the court must punish an individual found guilty of drug trafficking more severely if the evidence demonstrates he committed the offence for the benefit of a criminal motorcycle gang.

There are many other aggravating factors not listed in the Criminal Code that flow from principles developed over the years in judgments. The court also takes them into account:

• recidivism (relapsing into pattern of criminal behaviour after previous convictions);
  
• premeditation;
  
• violence;
  
• the offence was committed while the offender was on interim release or parole;
  
• a short period of time since the previous conviction;
  
• any significant long term emotional consequences the victim suffered;
  
• any significant material or financial losses the victim suffered.

A harsher sentence cannot be imposed because the offender kept silent, pleaded not guilty, or went to trial. Exercising these rights is not an aggravating factor.

Yes, a person’s previous convictions are important when determining the sentence. The court will generally impose a harsher sentence on a recidivist than on a first time offender. Sometimes it says so in black and white in the law. For example, under the Criminal Code, the sentence for a second offence of impaired driving is a minimum of 30 days in prison coupled with at least a two-year prohibition on driving, as opposed to a $1,000 fine, and at least a one-year prohibition from driving for first-time offenders.

The court must also consider any mitigating circumstances.

The judge can be more lenient if the offender cooperated with the police, pleaded guilty because he regretted his act or showed remorse.

The judge can also sympathize with the fact that the offender was experiencing significant family, psychological, or financial problems when the offence was committed, or has a drug or alcohol problem for which he is being treated. She can also be more lenient if the offender lost his job as a result of the guilty verdict.

The fact that the offender shows compassion for his victim or offers to compensate her can also result in a lighter sentence.

Lastly, the judge will take any time spent in provisional custody while waiting for trial into account when calculating a prison sentence. An accused may be incarcerated during the proceedings until the trial is over because he is considered very dangerous or it is feared he would not show up for his trial. This period spent in prison is an important element in calculating the offender’s sentence and will reduce any prison sentence to be imposed. Time spent in provisional custody generally counts for double.

For example, Horace has been in custody since he was arrested three months ago. He is found guilty at the conclusion of his trial. The judge estimates the sentence should be 12 months of detention. The judge must multiply the three months by two and subtract it from the total sentence to be imposed. Horace will be sentenced to six months in prison (12 months - (2 x 3 months) = 6 months). This is not an absolute rule and the court can deviate from it in certain circumstances.

The victim in every case can prepare a written statement detailing any material, bodily or moral harm suffered as a result of the offence. This statement must be filed in the court record. The Crown prosecutor and the accused both receive a copy of this statement. The judge must verify if there is a victim impact statement before imposing the sentence.

The judge considers the statement and may even have the victim read it out in court rather than just reading it himself, even if this request has not been made by the victim.

The spouse or relative of a deceased or ill victim may write the statement.

The victim may also be summoned to testify before the court during the sentencing hearing.