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

Whether there was a trial with or without a jury, a guilty verdict following a trial, or a guilty plea, it is always the judge who decides the sentence.

To learn more about sentencing, we invite you to read this Infosheet and 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:

• condemning illegal conduct
  
• discouraging the offender and other people from committing offences
  
• protecting the public
  
• helping the offender reintegrate into the community
  
• providing reparation to the victims or the community for any harm suffered
  
• promoting a sense of responsibility in offenders, and especially to have them acknowledge the harm done to victims and the community

Under the Criminal Code, judges must take various factors into account when handing down a sentence. First, the judge must respect the minimum and maximum sentences provided for each offence. Obviously, the court can impose something less than the maximum one.

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

Let's say that Maude is found guilty of shoplifting for the first time. She stole a $50 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 would, for example, fine her $200, a much more reasonable sentence given the circumstances.

Yes. The law sets out the maximum sentence the court can impose for each offence. As a general rule, the maximum sentence is only imposed in rare cases.

The maximum sentence under the Criminal Code for a summary conviction offence is a fine of $5,000 and/or 6 months in prison (with some exceptions, such as for breach of probation). However, the maximum fine for a legal person (a company) is $100,000.

There is no maximum fine for indictable offences. However, the Criminal Code does provide a maximum prison sentence for each offence. Here are some examples of maximum prison sentences:

• criminal negligence causing death: a maximum of life imprisonment
  
• dangerous driving causing death: a maximum of 14 years imprisonment
  
• sexual assault: a maximum of 10 years imprisonment

To learn more about the difference between a summary conviction offence and an indictable offence, consult our Infosheet Introduction to Criminal and Penal Law.

Along with maximum sentences, which are provided for all offences, the law provides minimum sentences for some kinds of offences. The judge is obliged to apply a minimum sentence if there is one.

In Canada, there are about 40 offences for which the Criminal Code imposes a minimum mandatory sentence. Most of these offences fall into 3 large categories: sexual offences 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 (even if his weapon was a fake).
  
• A person found guilty of having invited a child under 16 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 seriousness of the offence
  
• the victim impact statement, if there is one
  
• 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 to the court case and contains information about the offender, including his family history, education, personal characteristics, activities, mental and physical health, personality, etc.

If the accused has been convicted of other offences in the past, this can lead to a harsher sentence.

Also, the judge can impose a harsher sentence if there are aggravating circumstances.

The Criminal Code describes what 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 will be more severe with someone who vandalized a Jewish gravesite if the evidence demonstrates his act was motivated by anti-Semitism
  
  
• The offence involved 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 children.
   .
  
• The offence involved an 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 a pattern of criminal behaviour after previous convictions)
  
• premeditation (planning in advance to commit an offence)
  
• 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 harm suffered by the victim
  
• any significant material or financial losses suffered by the victim

However, a harsher sentence cannot be imposed just 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 sentencing. 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 plus at least a two-year prohibition on driving. But for first-time offenders, the sentence is a $1,000 fine and at least a one-year prohibition.

The court must also consider any mitigating circumstances.

The judge can give a lighter sentence if the offender cooperated with the police, pleaded guilty because he regretted what he did or showed he was sorry.

The judge can also consider any significant family, psychological, or financial problems the offender was experiencing when the offence was committed, or whether he has a drug or alcohol problem for which he was being treated. She can also give a less harsh sentence if the offender lost his job as a result of the guilty verdict.

The judge can also give a lighter sentence if the offender shows compassion for his victim or offers to compensate her.

Lastly, the judge can consider any time spent in provisional custody while waiting for trial when calculating a prison sentence. An accused may be kept in prison until the trial is over if he is considered very dangerous or it is feared he would not show up for his trial. This time spent in prison is an important element in calculating the offender’s sentence and will reduce any eventual prison sentence. Each day spent in provisional custody is taken into account in sentencing.

Let’s say that Horace has been in custody since he was arrested 3 months ago. He is found guilty at the end of his trial. The judge estimates the sentence should be 12 months of detention. When calculating the sentence, the judge must count the 3 months and subtract them from the total sentence. Horace could therefore be sentenced to 9 months of detention (12 months - 3 months = 9 months).

This is not an absolute rule: the court can sometimes calculate the sentence differently.

Victims always have a chance to prepare a written statement talking about 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 check if there is a victim impact statement before imposing a sentence.

The judge will consider the statement and may even have the victim read it out in court, even if this request has not been made by the victim.

If the victim is sick or has passed away, a relative can write the statement.

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