How to Prepare For and Conduct a Non-custodial Sentencing Hearing as a Law Student (1:App D)

How to prepare for a sentencing hearing as a law student

1. Complete the client questionnaire.
2. Determine the available sentence and the appropriate range of sentence. Review sections 720-729 of the Criminal Code and, in particular, section 718.
3. Determine the Crown’s position on sentence – Consider whether
   • a. There is anything the client could demonstrate to cause the Crown to soften its position
   • b. A delay of the hearing would be advantageous to the client
4. Consider any mitigating or aggravating factors. The following are some mitigating factors:
   • Early plea of guilt
   • Pre-trial custody attributed to this offence
   • Restrictions placed upon the client pursuant to the release (bail) order
   • Loss of employment or loss of license (if there was a driving offence) or other events which have caused hardship to the client.
5. Consider the facts of the offence as it relates to our client:
   • the client's role in the offence, i.e., follower or under the influence of others
   • offence was the result of a spontaneous event
   • incident was an isolated occurrence absence of property loss
   • absence of injuries or full recovery from injuries
   • motive, e.g., for property offences, the items obtained were necessities
   • previous and/or subsequent positive relationship with the victim
   • client's state of mind at the time of offence:
   • mental illness short of not criminally responsible
   • alcohol or drug involvement, particularly if addiction present
   • client's limited or diminished intelligence or emotional instability
   • any changes made by the client such as counseling or other treatment.
6. Collect reference letters or letters of employment. Make 2 copies of each and confirm with the writers of the letter that the letters are authentic. The letters must state that the writer is aware of the criminal charges.

Procedure (after the Crown has made submissions)

1. Tell the judge what you are seeking in terms of a sentence
2. Tell the judge whether you are in agreement with the Crown’s sentencing position in terms of the sentence, the length, & conditions
3. If you are not in complete agreement with the Crown position tell the judge:
   • a.Which facts are in dispute
   • b.Which portions of the Crown sentencing position are in dispute (such as the sentence, length & conditions)
4. Briefly review the client’s background (use the client questionnaire as a starting point)
5. Briefly discuss the effect of the crime on our client and the changes made as a result
6. Review why some of the conditions sought by Crown may not be necessary
7. Tell the judge our client is extremely remorseful and embarrassed by the incident (if you have instructions from the client to say that)
8. Review what you are seeking and why it satisfies the principles of sentencing as set out in section 718

LSLAP clinicians: please review the section of the Guide to Criminal Defence Work with respect to court etiquette and guilty pleas/sentencing.

Sentencing Submissions Script

1. Crown calls the case
2. Introduce yourself – go up to the counsel table and motion for your client to stand beside you – “Your Honour, my name is Jane Doe, last name spelled D-O-E. I am a law student with the UBC Law Students’ Legal Advice Program and with the court’s leave I represent John Smith, who is present before the court.” – Getyour client to stand up from where they are seated. If they are in the gallery get them to cross the bar to stand beside you.

Explain why are you here – “Your Honour, this matter is before the Court today for guilty plea and sentencing on counts 2 and 3 of the information, and we are ready to proceed.”

Waive the Formal Reading of the Information - “Your honor we waive the formal reading of the information.

Continue on and Confirm Your Clients Understanding and Guilt - “Count 2 charges Mr. Smith with committing an assault in Vancouver on 3 May 2010, do you understand the charge, Mr. Smith?”

Client – “Yes”

Mr. Smith, do you wish to plead guilty or not guilty on Count 2?”

Client – “Guilty.”

Student – “And Count 3 charges Mr. Smith with committing an assault in Vancouver on 3 May 2010, do you understand the charge, Mr. Smith?”

Client – “Yes.”

Student – “And with respect to Count 3, Mr Smith, what is your plea, guilty or not guilty?”

Client – “Guilty.”

In very rare circumstances, if you have concerns about your clients’ ability to understand the process, you can instead state, “I ask that the charge be formally read to Mr. Smith.”

The Court will then read the charge to the accused and ask the client to enter his or her plea, plus the questions required by s 606(1.1). This should only be done in rare cases where the client is seriously mentally ill, changing instructions and throwing up red flags and you need to protect yourself in case the client tries to withdraw his or her guilty plea in the future.

(You and your client can sit down at this point in time). Crown will read in the facts, state Crown’s sentencing position and make submissions as to why their position is fit and appropriate in the circumstances.

Your submissions – it depends on your style and each case and each submission is different, but it should have the following contents and in approximately this order.

You should stand when making submissions and your client can remain seated:

• a) Defence sentencing position – tell the judge right away what you want
• b) Facts – do you agree or disagree with the facts underlying the charges as alleged by the Crown? Is there further information or facts you wish to submit?
• c) Circumstances of your client – you should tell the judge everything that’s on the background questionnaire
• d) Go through your proposed conditions and why. Link the condition you’re proposing back to a specific principle of sentencing.
• e) Summarize and conclude and tell the judge again what you’re asking for and why.

Please review the section of the Guide to Criminal Defence Work with respect to court etiquette and guilty plea-sentencing.