Difference between revisions of "Resolving Criminal Matters Prior to Trial (1:VI)"

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{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = criminal}}
{{LSLAP Manual TOC|expanded = criminal}}


It is important at this point to review the elements of the alleged offence with the client to ensure that they understand what they are charged with.
It is important to review the elements of the alleged offence to ensure an understanding of what one is charged with.
 
== A. Stay of Proceedings ==
After reviewing the police report, if there is not a substantial likelihood of conviction, or it would not be in the public interest to proceed, a letter can be drafted to the assigned Crown Counsel requesting that they reconsider the charge. The contact information for the assigned Crown can be obtained by calling the Crown Counsel office in the city in which the charge was laid. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges (e.g., the accused is terminally ill), the Crown may choose to reconsider. A stay of proceedings is a decision to not proceed with the charges. A stay of proceedings appears on the accused’s Vulnerable Sector Criminal Record Check. Therefore, a stay may affect the accused’s employment if they intend to work with children or seniors.
 
 
== B. Diversion / Alternative Measures ==
This option allows for a first-time offender to be “diverted away” from the court system. Although referred to as “diversion,” the program’s official name is Alternative Measures (''Criminal Code'', s 717).
 
 
The accused or the accused’s counsel may make a request to the Crown Counsel office to be “diverted”. In some cases, Crown Counsel may also recommend diversion. This program takes the accused out of the court system. The application itself may be made before or after a charge is laid. The diversion program is primarily designed for first-time offenders who are prepared to admit their culpability and remorse in the matter. It is advised to call Crown in advance of sending the diversion application to make sure they are open to it. Include the following in the application:
# that the letter is Without Prejudice;
# the circumstances of the offence, including a clear admission of all the essential circumstances of the offence;
# the background of the accused;
# the effect that a criminal record would have on the accused; and
# the accused person’s feelings of remorse or repentance for the offence.
 
 
The accused must understand the concept of diversion and be prepared to speak openly and honestly to a probation officer. The accused must clearly admit to the offence and express remorse for their commission. They should offer in the diversion letter where applicable, to write a letter of apology, undergo anger or stress management counselling, or make restitution. These options should be considered with the Crown, if possible.
 
 
The Crown will consider whether the accused and the nature of the offence are such that diversion is appropriate. If the Crown decides the accused is a good candidate for diversion, the file will be sent to a community worker who will review the circumstances and then discuss the matter with the accused. The accused is entitled to have legal counsel present at this meeting. If the accused admits their culpability, and the probation officer is satisfied that the accused is an appropriate candidate for diversion, the Crown will be so advised. The criminal matter will likely be adjourned to allow the accused to complete the diversion process. The Crown will either enter a stay of proceedings or withdraw the charges once diversion has been completed.
 
The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with both fixing a trial date and writing a letter of application for diversion. Where an accused has not yet been determined to be an appropriate candidate for diversion, the court is unlikely to grant an adjournment for the purpose of considering diversion. That is, unless Crown Counsel opines that they believe diversion if likely to occur.
 
 
See '''Appendix C '''and''' D''' for an example of an application for diversion.
 
 
== C. Peace Bond (s 810) ==
A peace bond is a court order requiring a specific individual to “keep the peace and be of good behaviour”. A peace bond is not a conviction or a guilty plea; however, a peace bond can restrict an accused person’s liberty. Under section 810 of the ''Criminal Code'', the accused enters into a recognizance with conditions. In addition to requiring that the recipient “keep the peace and be of good behaviour”, a peace bond will also set out specific conditions intended to protect a person or a specific type of property, such as not to contact certain persons and/or not to attend a certain
address or area. These conditions can last up to one year, and the length of the term can be negotiated with the Crown. Although a peace bond is not itself a criminal conviction, breaching a peace bond
is a separate criminal offence.
 
In order for a peace bond to be imposed, there must exist '''reasonable grounds''' for the complainant to believe that the accused will cause personal injury to the complainant or their spouse or child, or that they will cause damage to the complainant’s property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the accused is conceding that the complainant has reasonable grounds for their fear. The accused does not have to admit to all of the facts in the Report to Crown Counsel. However, the accused does have to admit to sufficient facts to form a reasonable basis for the victim to fear them. If there are facts that are in dispute, discuss this with Crown first. If both sides come to an agreement, the court process is similar to a sentencing hearing in terms of the submissions that are made. For more information, see the section on '''Pleading Guilty''', below.
 
 
Occasionally, such as when the Crown wishes to impose a peace bond and the accused does not agree, there will be a full hearing on the issue. The Crown often considers peace bonds in cases of spousal assault because of a victim’s reluctance to go to trial. At the hearing, the Crown must prove on a '''balance of probabilities''' that there are reasonable grounds for the fear. '''Hearsay evidence is allowed, as it goes to the informant’s belief that there are grounds for the fear''' ([https://www.canlii.org/en/bc/bcpc/doc/2002/2002bcpc597/2002bcpc597.html?autocompleteStr=r%20v%20o%20(p.a.)&autocompletePos=1 ''R v PAO'', [2002<nowiki>]</nowiki> BCJ No 3021 (BC Prov Ct)]). Since there is no criminal standard of proof, the judge must look at '''all''' the evidence, and not focus merely on the absence of the offending conduct ([https://www.canlii.org/en/bc/bcsc/doc/2004/2004bcsc1438/2004bcsc1438.html?searchUrlHash=AAAAAQAHciB2IGRvbAAAAAAB&resultIndex=2 ''R v Dol'', 2004 BCSC 1438]).
 
 
If a bonded person breaches the peace bond, a criminal charge may be laid against them. Peace bonds are sometimes used as alternatives to criminal charges like uttering threats (''Criminal Code'', s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the accused is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses their concerns without raising the uncertainty and possible trauma of a trial. An accused should be advised that while a peace bond is not a criminal record, it may affect
future hearings, travel outside the country, and decisions concerning custody.
 
 
== D. Pleading Guilty ==
A guilty plea is appropriate only when all of the below are true:
*diversion is not granted;
*a peace bond is not appropriate;
*the accused admits guilt;
*it appears that the Crown will be able to prove its case; and
*the accused wishes to plead guilty.
 
 
Section 606 of the ''Criminal Code'' outlines the conditions that need to be met for a court to accept a guilty plea. These include that:
*the accused is making the plea voluntarily;
*the accused understands that the plea is an admission of the essential elements of the offence, the nature and consequences of the plea, and that the court is not bound by any agreement made between the accused and the prosecutor; and
*the facts support the charge.
The court has an obligation to ensure that section 606 has been canvassed with the accused before accepting any guilty plea and should canvass these matters directly with the accused, unless the accused is represented by legal counsel who assures the court that section 606 has been canvassed. Legal counsel should canvass these matters with the client prior to the guilty plea and take detailed notes of this interaction, if there is any doubt about the clients understanding of this interaction counsel should have the court canvass section 606 directly with the accused.  
 


{| class="wikitable"
{| class="wikitable"
! style="font-style: italic;text-align: left;" | Practice Recommendation - Ensuring the Crown can Prove Its Case
! style="font-style: italic;text-align: left;" | Applying to Strike an Entered Guilty Plea
|-
|-
| Prior to asking a client what happened from their perspective, some counsel want to review the nature and character of the charges and the possible defences with the client. Even if the client admits their guilt, a client must be advised regarding the strength of the Crown’s case. A criminal defence lawyer has an ethical obligation to pursue any viable defence, even if only as a negotiation tactic. There is nothing unethical about running a trial with regards to a client who admits their guilt, as long as the clinician is not misleading the court and the client does not take the stand to testify.  
| Legal counsel should bear in mind that accused persons sometimes desire to change their plea after entering a guilty plea and may blame counsel for failing to advise them about the consequences of their plea. An accused may retain new counsel and make an application to set aside the entered guilty plea. In such a situation, solicitor client privilege will usually be set aside, and the lawyer may be forced to take the stand and explain why they believed the client understood the consequences of the guilty plea (see [https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca276/2020bcca276.html?autocompleteStr=R%20v%20Lam%2C%202020%20BCCA%20276%20(CanLII&autocompletePos=1 ''R v Lam'', 2020 BCCA 276 (CanLII)]).
|}
|}


{| class="wikitable"
! style="font-style: italic;text-align: left;" | Practice Recommendation - Explaining a Client’s Options
|-
| Be very sure that the client understands exactly what they are pleading to, and the consequences of their plea. Also be very sure that the client understands that it is ultimately their decision as to which option to apply. Ensure that the client understands the consequences and risks of going to trial, any possible defence he or she may have and the difficulties in raising such a defence.


Clinicians must never force a client to choose a particular option, particularly one where the accused is required to admit guilt. ''It is always the client who ultimately decides the course of action they wish to follow.''
The sentencing hearing can either proceed immediately after a guilty plea is entered or be adjourned to permit the parties to prepare for the sentencing hearing. For self-represented litigants, duty counsel can assist with a sentencing negotiation with the Crown. It is generally a good strategy to talk to Crown before pleading guilty, about the possibility of a joint submission where both sides agree on a sentence. Most Crown Counsel will agree to a reasonable joint sentencing position and will often stay some charges on a multi-count Information in exchange for a guilty plea on others. It is important to know that the judge is not bound by a joint submission (see [https://www.canlii.org/en/ca/scc/doc/2016/2016scc43/2016scc43.html?resultIndex=1 ''R v Anthony‑Cook'', 2016 SCC 43]). See '''Appendix E: How to Prepare for and Conduct and Sentencing Hearing''' for the process of entering a guilty plea.
 
 
Consequences of a guilty plea may include, but are not necessarily limited to:
*possible inability to obtain a passport or to enter the US;
*difficulty or impossibility of entering some postgraduate fields of study such as law;
*exclusion from jobs requiring bonds;
*possible use of the conviction in subsequent proceedings; and
*possible deportation if the accused is not a Canadian citizen.


The client may ask the clinician what they should do or what option they should take. The clinician should always remind the client that the choice is up to them, and refrain from telling the client whatto do. Explain the options open to the client again and review the risks and consequences facing the client for each option. However, the clinician must not counsel a client to plead guilty unless he or she is actually guilty ''AND'' the Crown can prove its case beyond a reasonable doubt.


In explaining the clinicians assessment of whether Crown can prove its case beyond a reasonable doubt clinicians should never give clients "odds" or their chances of winning an acquittal, rather a clinician should point out the possible defences available to the client and the difficulties, if any, of arguing such a defence.
== E. Sentencing Hearing ==
The statutory range for all sentences is in the ''Criminal Code''. Always check the statutory range that existed at the time of the offence, as well as at the time of sentencing, as the accused is entitled to the more favourable of the two. Ensure the minimum sentence has not been struck down by a successful Charter challenge or is about to be abolished by an act of Parliament.


''Common Ethical Situations Arising in Assisting a Client with their Options''


In certain circumstances, the course of action the client wants to take may render LSLAP unable to represent the client, for example if the client insists on illegal or unethical instructions, or where the client wishes to plead guilty for convenience. Some examples of this are as follows:
Prior to the sentencing hearing the accused and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document. The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Where the parties cannot agree, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see ''Criminal Code'', s 724 for how the court determines disputed facts). '''Note:''' Sometimes this will occur in the moment where Crown Counsel summarizes an aggravating fact during their sentencing submissions and the accused and their counsel realizes only then that an aggravating fact was not agreed upon. This may also occur in the process of the defence’s submissions when a mitigating circumstance is summarized.


''"I didn't do it, but I want to plead guilty because this is taking too much time away from my job, and it is just more convenient if I plead guilty."''


Clinicians have an ethical duty to ensure that the innocent do not plead guilty. Particularly, clinicians cannot represent clients in cases where they wish to plead guilty for the purposes of convenience, not because they actually admit guilt.
For serious offences, prior to the actual sentencing hearing, the accused or their counsel should consider whether the guilty person would benefit from seeking a Pre-Sentence Report (PSR) under section 721 of the ''Criminal Code''. A PSR can only be ordered after a guilty plea or finding is made. It is prepared by a probation officer and is considered a “neutral third party” report. It is a formal report and can help or harm the interests of the accused. If the accused is experiencing mental health issues, the PSR can include a psychological report. A favourable psychological report can reduce an accused’s eventual prison sentence. A psychological disorder that makes a person more likely to lose control of their emotions or impulses mitigates the moral culpability of an offender for offences where that emotion or impulse contributed to the occurrence of the offence. Where an accused person desires to obtain a psychological opinion, they should consider obtaining a private psychological report from a psychologist of the guilty person’s choosing instead of a PSR with a psychological component. A private psychological report commissioned by the accused person or their counsel has the advantage of being legally privileged and is only disclosed if it helps the accused. This avoids the possibility that exists with a PSR that the contents of the report will suggest that the offender has limited prospects of rehabilitation, thereby supporting a lengthier custodial sentence.


''"What if my wife / girlfriend / husband / boyfriend (complainant) doesn't come to testify?"''


At this point in time the client may ask what would happen if the complainant does not attend court to testify, even if summoned. Inform the client that if the key witness does not attend at court Crown may stay the charges against the client. ''If a Crown witness wishes not to attend to testify, they should obtain independent legal advice.'' If any witness has been summoned, and fails to attend to a summons, they can be arrested and even jailed. In addition, ''the client should be advised that if they tell a witness not to show up they would be committing  the criminal offence of obstructing justice'' (''Criminal Code'', s 139).  
Crown presents their submissions in the sentencing hearing first. Assuming that there is no substantial disagreement on the facts of the offence, Crown Counsel will simply blend together their summary of the facts of the offence and their position on the appropriate sentence, and the accused or their accused will do the same in reply.
|}


The clinician can attempt to negotiate with Crown for a better disposition of the matter for the client. With the exception of a Stay of Proceedings and a full trial, the options below (Diversion, Peace Bond, and Pleading Guilty) all require the client to take some measure of responsibility for the crime.


== A. Stay of proceedings ==
After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Law students should alert their client to the fact that they will be invited to speak after the law student finishes their submissions, and that the only thing that can help them at that point is a heartfelt expression of remorse thought there is no obligation to say anything. Following the accused’s opportunity to personally speak to the court, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see '''Appendix E: How to Prepare for and Conduct a Sentencing Hearing'''.
After reviewing the police report, if there is not a substantial likelihood of conviction, or it would not be in the public interest to proceed, a student can approach Crown Counsel and ask that they reconsider the charge. The letter must be without prejudice. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges, the Crown may again choose to reconsider (e.g. the client is terminally ill). Be  sure  to inform the client that for  a summary  offence  the Crown can recommence proceedings  within the  limitation period. For hybrid offences, Crown could choose to proceed by indictment and re-lay the charges at any subsequent time.


== B. Diversion / alternative measures ==
This option allows for a first time offender to be "diverted away" from the court system. Although referred to as "diversion," the program's official name is Alternative Measures (''Criminal Code'', s 717). The client or the client’s lawyer may make a request to the Crown Counsel office to be "diverted."  In some cases, Crown may also recommend diversion. This program takes the client out of the court system. The application itself may be made before or after a charge is laid. The diversion program is primarily designed for first-time offenders who are prepared to admit their culpability and remorse in the matter. It is advised to call Crown in advance of sending the diversion application to make sure they are open to it. Include the following in the application:
*That the letter is Without Prejudice,
*The circumstances of the offence, including a clear admission of all the essential circumstances of the offence,
*The background of the client,
*The effect that a criminal record would have on the client, and
*The client's feelings of remorse or repentance for the offence.


You must ensure your client understands the concept of diversion and is prepared to speak openly and honestly to a probation officer. The client must clearly admit the offence and express remorse for its commission. He or she may also be required, and should offer to in the diversion letter where applicable, to write a letter of apology, undergo anger or stress management counselling, or make restitution. These options could be considered in the letter or during meetings with the Crown.
It is important to '''consult sections 718 and 718.2 of the ''Criminal Code''''' for the principles in sentencing that the judge will consider and to '''address these issues when drafting your submissions'''. The accused should also read up to section 743.1 of the ''Criminal Code'' before any sentencing hearing, where various consequences and conditions for various sentences are outlined.  


The Crown will consider whether the client and the nature of the offence are such that diversion is appropriate. If the Crown decides the client is a good candidate for diversion, the file will be sent to a community worker who will review the circumstances and then discuss the matter with the client. The client is entitled to have legal counsel present at this meeting. If the client admits his or her culpability, and the probation officer is satisfied that the client is an appropriate candidate for diversion, the Crown will be so advised. The Crown will likely enter a stay of proceedings and the client will likely be required to work in the community, write an essay, write a letter of apology,  etc. The stay of proceedings is usually entered once diversion has been completed and a letter from the Greater Vancouver Adult Community Alternative Measures Program confirms the completion. The client should be advised that Crown will not attempt to use the offender's admission against him or her if diversion is ultimately refused.


The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with fixing a trial date and writing a letter of application for diversion. Some judges think they should not grant adjournment "for the purpose of considering diversion," since technically the diversion process is separate and apart from  the court process. Therefore, although appending application for diversion can be used as partial justification for applying for an adjournment, that application may not be successful and you should be prepared to move the court process forward at the same time as you are pursuing a diversion request. See [[Diversion Application and Sample Letter (1:App C) | Appendix C: Diversion Application and Sample Letter]] for an example of an application for diversion.
There are two common strategies for presenting the circumstances of an accused. One strategy is to present the lead-up to the offence as a unique set of unusual circumstances that caused a momentary and exceptional loss of control and explain what has changed in the accused’s life to avoid a similar set of unusual and exceptional circumstances. This establishes that the problem has already been resolved and will not recur, and that a harsh sentence is unnecessary. Another strategy is to highlight the disadvantageous life circumstances, such as lack of family support, lack of employment or educational opportunities, mental illness, or addiction, which contributed to the commission of the offence. This lessens the accused’s moral culpability for their conduct.


== C. Peace Bond (s 810) ==
A  peace  bond  is  a  court  order  requiring  a  specific individual  to  "keep  the  peace  and  be  of  good behaviour". A peace bond is not a conviction or a guilty plea; however, a peace bond can restrict the client’s  liberty.  Under  section  810  of  the ''Criminal  Code'' the accused  enters  into  a  recognizance  with conditions; in addition to requiring that the recipient to "keep the peace and be of a good behaviour", a peace  bond  will  also  set  out  specific  conditions  intended  to  protect  a  person  or  a  specific  type  of property, such as, not to contact certain persons and/or not to attend a certain address or area. These conditions can last up to one year, and the length of the term can be negotiated with Crown. Although a peace bond is not itself a criminal conviction, breaching a peace bond is a separate criminal offence.


In order for a peace bond to be imposed, there must exist ''reasonable grounds'' for the complainant to believe that the accused will cause personal injury to the complainant or his or her spouse or child or that they will cause damage to his or her property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the client is conceding that the complainant has reasonable grounds for their fear. The client does not have to admit to all of the facts in the Report to Crown Counsel. However, they do have to admit to sufficient facts to form a reasonable basis for the victim to fear the client. If there are facts that are in dispute, discuss this with Crown first. If both sides come to an agreement, the court process is similar to a sentencing hearing in terms of the submissions that are made. For more information, see the section on [[{{PAGENAME}}#D. Pleading Guilty | Pleading Guilty]], below.
In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). The default is consecutive. However, if the offences were sufficiently distinct from each other Crown may seek concurrent sentences. The legal test is whether or not the two criminal acts were part of a linked series of acts within a single endeavour. See [https://www.canlii.org/en/bc/bcca/doc/2009/2009bcca85/2009bcca85.html?autocompleteStr=R%20v%20Li%202009%20BCCA%2085&autocompletePos=1 ''R v Li 2009'' BCCA 85 at para 43].


Occasionally, such as when the Crown wishes to impose a peace bond and the accused does not agree, there will be a full hearing on the issue. The Crown often considers peace bonds in cases of spousal assault  because  of  a  victim's  reluctance  to  go  to  trial.  At  the  hearing,  the  Crown  must  prove  on  a ''balance of probabilities'' that there are reasonable grounds for the fear. Hearsay evidence ''is'' allowed, as it goes to the informant’s belief that there are grounds for the fear (''R. v PAO'', [2002] BCJ No 3021 (BC Prov Ct)). Since there is no criminal standard of proof, the judge must look at ''all'' the evidence, and not focus merely on the absence of the offending conduct (''R  v Dol'', [2004] BCJ No 2314 (BCSC)).


If a person breaches the peace bond, a criminal charge may be laid against the bonded person. Peace bonds are sometimes used  as alternatives  to criminal charges like uttering  threats  (s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the client is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses his or her concerns without raising the uncertainty and possible trauma of a trial. A client should be advised that while a peace bond is not a criminal record, it may affect future hearings, travel outside the country, and decisions concerning custody.
In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court’s recent position on consecutive vs. concurrent parole ineligibility periods, which speaks to the Charter issues in sentencing, see [https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19405/index.do ''R v Bissonnette'', 2022 SCC 23].


== D. Pleading Guilty ==
A guilty plea is appropriate when:
The judge must also consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody.
*diversion is not granted,
*a peace bond is not appropriate,
*the client admits guilt,
*it appears that the Crown will be able to prove its case, and
*the client wishes to plead guilty.


If the client wishes to plead guilty then the court appearances should be adjourned to allow the clinician sufficient time to "negotiate" with Crown Counsel for the most appropriate sentence. It is generally a very good strategy to talk to Crown in advance about a joint submission where both sides agree on a sentence. Most Crown will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with Crown, a sentencing hearing will be scheduled at which the clinician can present the client’s position. If an agreement is reached with Crown, it is important to know that the Judge is not bound by a joint submission; however, a joint submission is highly likely to be accepted. See [[How to Prepare For and Conduct a Sentencing Hearing (1:App D) | Appendix D: How to Prepare for and Conduct a Sentencing Hearing]] for the process of a guilty plea.


Consequences of a guilty plea may include, but are not necessarily limited to:
{| class="wikitable"
*possible inability to obtain a passport or to enter the U.S.,
! style="font-style: italic;text-align: left;" | Gladue Reports
*difficulty or impossibility of entering some postgraduate fields of study such as law,
|-
*exclusion from jobs requiring bonds,
| For cases where the offender is Indigenous, reference must be made to section 718(e) of the '''Criminal Code''' and the principles laid out in [https://www.canlii.org/en/ca/scc/doc/1999/1999canlii679/1999canlii679.html?searchUrlHash=AAAAAQAKciB2IGdsYWR1ZQAAAAAB&resultIndex=1 ''R v Gladue'', [1999<nowiki>]</nowiki> 1 SCR 688]. Section 718(e) of the ''Criminal Code'', which states that judges must pay attention to the circumstances of Aboriginal offenders, was implemented in 1996 in an attempt to address the over representation of Indigenous Peoples within Canadian prisons. ''Gladue'' followed shortly thereafter in 1999, and established that judges must consider Gladue principles when making decisions in cases with Indigenous offenders. This means that a judge must consider the personal and unique circumstances of the accused as well as the particular hardships they have faced, resilience they have demonstrated, and ways to support them that would address their challenges. The judge should consider the accused’s life experience and what has happened to them, their friends, family and community. The Supreme Court in ''Gladue'' specifically outlined that sentencing judges must pay attention to:
*possible use of the conviction in subsequent proceedings, and
*possible deportation if the client is not a Canadian citizen.


In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). Consecutive sentences are often ordered whenthe offences are unrelated and of a serious nature.
#The unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and
#The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of his or her particular Indigenous heritage or connection.


The judge also has discretion to credit an accused with any time spent in custody as a result of the charges.


An important part of a student’s role as an LSLAP clinician may be negotiating a sentence with Crown Counsel. In fact, some of a student’s best advocacy can occur outside the courtroom – when discussing mitigating factors with the Crown. The Crown can  sometimes  be convinced to assume a less  harsh position, or even to agree on a joint submission for sentencing. Most judges will follow a joint submission but they are not bound by it.
The Crown, defence counsel, and the Indigenous individual must give the judge the information they need to make an assessment based on Gladue principles. This can be done through a Gladue report, which is a report that lays out a holistic profile of an Indigenous individual and how they have come to be before the court. These reports are based on interviews with the individual, friends, family, and community members as well as information about their family background and the effect of colonization. A Gladue report is different than a Pre-Sentencing Report and should be prepared by someone with experience preparing these reports and insight into Indigenous communities. The BC First Nations Justice Council has provincial responsibility for Gladue services and offers the opportunity to request a Gladue report from a roster of experienced Gladue report writers: https://bcfnjc.com/information-for-the-public/.


=== 1. Speaking to sentence (sentencing hearing) ===
It is important to note that, even if there is no Gladue report present, lawyers still have an obligation to bring information relevant to Gladue principles before the court in every case and judges have an obligation, not just to reference those principles, but provide an explanation of how they applied them when it comes to sentencing. Gladue principles apply to '''all''' offences under the ''Criminal Code''.
Before a sentence is given, the  accused,  or counsel for  the accused,  must be  permitted  to "speak to sentence" and make submissions to the judge that could affect the sentence. After hearing Crown recommendations and then defence submissions, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see [[How to Prepare For and Conduct a Sentencing Hearing (1:App D) | Appendix D: How to Prepare for and Conduct a Sentencing Hearing]].


It is important to ''consult sections 718 and 718.2 of the Criminal Code'' for the principles in sentencing  that  the  judge  will  consider,  ''and  address  these  issues  when  drafting  your submissions''. A clinician should also read up to section 743.1 of the ''Criminal Code'' before any sentencing hearing.


There tend to be two broad strategies for presenting a client’s circumstances. With first time offenders this typically involves presenting the lead-up to the offence as a unique set of unusual circumstances that caused a  momentary and exceptional loss of control,  and  then  showing what has changed in the life of the client to avoid a similar set of unusual and exceptional circumstances. Students should seek to show the court that the problem has already been cured and will not recur, and that a harsh sentence is unnecessary. With repeat offenders, it is more strategic to present the disadvantageous life circumstances, such as lack of family support or lack of employment/educational opportunities, which may have contributed to the offence being committed.  Students should then show that the offender has changed his or her outlook and is seeking to turn their lives around. This involves in part an understanding of the client's situation, and an understanding of the severity of the offence.
For further information on Gladue principles and reports see the Gladue Report Guide published by the Legal Services Society in collaboration with the BC First Nations Justice Council: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://pubsdb.lss.bc.ca/pdfs/pubs/Gladue-Report-Guide-eng.pdf.  
|}


*'''Note:''' In cases of ''Aboriginal offenders'', reference must be made to section 718.2(e) and the principles enunciated in ''R v Gladue'', [1999] 1 SCR 688.


== E.Types of sentences ==
== F. Types of Sentences ==


=== a)Absolute or conditional discharge ===
=== 1. Absolute and Conditional Discharges ===
Discharges are outlined in section 730 of the ''Criminal Code'':
Discharges are outlined in section 730 of the ''Criminal Code'':
*They are available if accused is not subject to a minimum penalty and the offence is not one punishable with a maximum sentence of 14 years imprisonment or more.
* Discharges are available if the accused is not subject to a minimum penalty and the offence is not one punishable with a maximum sentence of 14 years of imprisonment or more.  
*A discharge means there is a finding of guilt rather than a conviction. At the end of the discharge period the accused has no criminal record.
* A discharge means that there has been a finding of guilt rather than a conviction. At the end of the discharge period, the accused has no criminal record.  
*The discharge must be in the best interests of the accused and not against the public interest.
* The discharge must be in the best interests of the accused and not be against the public interest.
*An absolute discharge means that the accused has no criminal record immediately upon being sentenced.
* An '''absolute''' discharge means that the accused has no criminal record immediately upon being sentenced.  
*A conditional discharge means that the accused is on probation, with certain conditions, for a period of time. If the accused follows the rules, at the end of the probation period he or she is treated as if there were no conviction and will not have a criminal record.
* A '''conditional''' discharge means that the accused is on probation, with certain conditions, for a period of time. If the accused follows the rules, at the end of the probation period they are treated as if there were no conviction and will not have a criminal record.
*An absolute discharge is granted immediately without terms or conditions, whereas the effect of a conditional discharge is that the accused is on probation for a period of time. This can involve a number of various conditions the accused must abide by. If the accused successfully completes the period of probation with no breaches or further criminal offences, the conviction is discharged and the offender can say he or she has no prior convictions. It is important to note however that an absolute or conditional discharge still requires a finding of guilt.
* An absolute discharge is granted immediately without terms or conditions, whereas the effect of a conditional discharge is that the accused is on probation for a period of time. This can involve a number of various conditions by which the accused must abide. If the accused successfully completes the period of probation with no breaches or further criminal offences, the conviction is discharged, and the offender can say they have no prior convictions. It is important to note however that an absolute or conditional discharge still requires a finding of guilt.
* Both an absolute discharge and a conditional discharge (as well as the probation order that accompanies it) will be visible on some background checks, including vulnerable sector checks, for several months after they are entered into/the probation order ends. However, the guilty party still does not have a criminal record.
 
:'''NOTE:''' Each of the sentences listed below results in a conviction and a criminal record.
 


*'''Note:''' Each of the sentences listed below results in a conviction and a criminal record.
=== 2. Suspended Sentences and Probation ===
If the judge believes, having regard to the age, character, and personal circumstances of the individual, that the accused can rehabilitate themselves, the judge can suspend the passing of sentence and release the accused subject to the terms of a probation order of up to three years (''Criminal Code'', s 731(1)(a)). This does not mean that the accused has been acquitted; '''the accused will have a criminal record'''.


=== b) Suspended sentences and probation ===
This sentence is only available if the accused is not subject to a minimum penalty. Probation means that the accused has to follow certain conditions that the judge sets. For example, the accused will have to stay out of trouble, report to a probation officer (someone who keeps track of the accused), and obey other court-imposed conditions. An order for a suspended sentence means that the courts suspend the passing of a sentence for the duration of the probation period. If a person breaches the conditions of a suspended sentence the court may extend the length of the probation period or (in rare cases) revoke the suspension of sentence and substitute a jail sentence for the suspended sentence. In addition, the breach is a new criminal offence, and the accused may be charged with a breach of the probation conditions.
If  the judge  thinks  that,  having  regard  to the age, character  and  personal circumstances of the individual, the accused can rehabilitate him or herself, the judge can suspend the passing of sentence and release the accused subject to the terms of a probation order of up to three years (''Criminal Code'', s 731(1)(a)). This does not mean that the accused has been acquitted; ''at the expiry of their probationary period, the accused will still have a criminal record''. This is an important difference between probation and a conditional discharge.  


The  sentence is available if the  accused is not  subject  to a  minimum  penalty. An accused can be sentenced to probation for up to three years. Probation means that the accused has to follow certain conditions that the judge sets. For example, the accused will have to stay out of trouble, report to a probation officer (someone who keeps track of the accused), and obey other court-imposed conditions. The accused is still convicted of the crime, but the sentence is suspended while the accused is on a term of probation. A suspended sentence is not a final sentence. An accused who is convicted of breaching any of the conditions of the probation order may in addition to being sentenced for the offence of breach of probation, also have the suspended sentence revoked and the accused can be sent to jail.


=== c) Fines ===
=== 3. Fines ===
Under section 734 of the ''Criminal Code'', an accused may be fined in addition to, or in lieu of, another punishment for offences punishable by imprisonment of five years or less for which there is no minimum penalty.
Under section 734 of the ''Criminal Code'', an accused may be fined in addition to, or in lieu of, another punishment for offences punishable by imprisonment of five years or less for which there is no minimum penalty.
A fine can be ordered on its own or in addition to probation or imprisonment (but not both). An accused may be fined up to $5,000 for summary conviction offences (or a hybrid offence wheretheCrownelectstoproceedsummarily),or any amount for indictable offences. Before a court imposes a fine, it must inquire into the ability of the accused to pay the fine.
=== 4. Restitution and Compensation ===
Restitution orders can be made as “stand-alone” orders imposed as an additional sentence (s 738 of the ''Criminal Code'') or as a condition of probation or conditional sentence order by the court. The restitution can be ordered for the cost of repairing any property damage, replacing lost or stolen property, or any physical or psychological injuries suffered by a victim that required the victim to incur out of pocket expenses or resulted in a loss of income.
=== 5. Conditional Sentence Order (CSO) ===
'''This is a jail sentence''' and occurs when a court orders the accused to serve their jail sentence in the community. It is not available when there is a minimum sentence of imprisonment, when there is a term of imprisonment of two years or more imposed, or where the offence involved a serious personal injury. The term “conditional” refers to rules the offender must follow in order to remain out of jail. The conditions are often similar to conditions imposed in a probation order; however, a curfew is almost always imposed. An accused that breaches any of their conditions or commits a new crime may be ordered to complete the remaining portion of the CSO in prison.
=== 6. Imprisonment (Jail) ===
Unless otherwise stated by statute, if the offence is a summary conviction offence (or Crown elects to proceed summarily), the maximum sentence of imprisonment is two years less a day; and if the offence is an indictable offence (or the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years. There are many offences where the maximum sentence available is in excess of 5 years. A judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence the accused is serving, or any other sentence arising out of the same transaction.
If the total sentence is two years or more, the accused will serve their sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve their sentence in a provincial jail. An accused should note that “two years” includes time already served before trial. So, a person who is sentenced to two years less a day of imprisonment, but has served one year in jail, while awaiting their trial, will be sent to a provincial penitentiary. If the jail sentence is provincial, a sentence of probation of up to 3 years can be added. If the jail sentence is federal, the court cannot add a probationary order to that sentence.


A fine can be ordered on its own or in addition to probation ''or'' imprisonment (but not both). An accused may be fined up to $5000 for summary conviction offences (or a hybrid offence where the Crown elects to proceed summarily), or any amount for indictable offences. Before a court imposes a fine, it must inquire into the ability of the accused to pay the fine.
If a judge imposes a sentence not exceeding 90 days, they may order that the sentence be served intermittently on certain days of the week or month. The accused is released on the other days, subject to conditions of a probation order.


=== d) Restitution and compensation ===
Restitution orders can be made as "stand-alone" orders imposed as an additional sentence (s 738 of the ''Criminal Code'') or as a condition of probation or conditional sentence order by the court. The restitution can be ordered for the cost of repairing any property  damage, replacing lost or stolen property, or any physical or psychological injuries suffered by a victim who required the victim to incur out of pocket expenses or resulted in a loss of income.


=== e) Conditional Sentence Order (CSO) ===
== G. Matters Ancillary to Sentencing ==
''This is a jail sentence'' and occurs when a court orders the accused to serve his or her jail sentence in the community. It is not allowed when there is a minimum sentence of imprisonment, when there is a term of imprisonment of two years or more imposed, or where the offence involved a serious personal injury. The term conditional refers to rules the offender must follow in order to remain out of jail. The conditions are often similar to conditions imposed on a probation order; however, a curfew is almost always imposed. An accused that breaches  any of his or her conditions or commits a new crime may be ordered to complete the remaining portion of the sentence in prison.


=== f) Imprisonment (jail) ===
=== 1. DNA Data Bank ===
Unless otherwise stated by statute, if the offence is a summary conviction offence (or Crown elects to proceed summarily), the maximum sentence of imprisonment is 6 months; and if the offence is an indictable offence (or the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years. There are many offences where the maximum sentence stated is in excess of 5 years. A judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence the accused is serving, or any other sentence arising out of the same transaction.  
If an offender is convicted of a “primary designated offence” enumerated in Section 487.04 of the ''Criminal Code'' – for example, sexual interference (s 151) and sexual exploitation (s 153) – a court must order the taking of bodily substances for the purposes of forensic DNA analysis, unless the impact on the person’s privacy would be “grossly disproportionate” to the public interest.


If the total sentence is two years or more, the accused will serve his or her sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve his or her sentence in a provincial jail.


If a judge imposes a sentence not exceeding 90 days, he or she may order that the sentence  be  served  intermittently  on  certain  days  of the week  or  month. The accused is released on the other days, subject to conditions of a probation order.
The court may also consider the criminal record of the offender, the nature of the offence, and the circumstances surrounding its commission. The court may also, at its discretion, make a DNA order upon conviction or discharge of a “secondary designated offence” – such as assault (s 265) – but the threshold for obtaining a DNA order is higher for these offences. Once the substance is analyzed, it is then entered into the Convicted Offender Index of the national DNA Data Bank. The data bank is widely used for many different types of crimes ranging from violent crimes to fraud involving impersonation.


== F. Matters ancillary to sentencing ==


=== a) DNA Data Bank ===
=== 2. Victim Fine Surcharge ===
If an offender is convicted of a "primary designated offence" enumerated in section 487.04 of the ''Criminal Code'' – for example, sexual  interference (s 151) and sexual exploitation (s 153) – a court must order the taking of bodily substances for the purposes of forensic DNA analysis, unless the impact on the person’s privacy would be "grossly disproportionate" to the public interest.  
A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing.


The court may also consider the criminal record of the offender, the nature of the offence, and the circumstances surrounding its commission. The court may also, at its  discretion,  make  a  DNA  order  upon  conviction  or  discharge  of  a  "secondary designated offence" – such as assault – but the threshold for obtaining a DNA order is higher for these offences. Once the substance is analysed, it is then entered into the Convicted Offender Index of the national DNA Data Bank. The data bank is widely used  for  many  different  types  of  crimes  ranging  from  violent  crimes  to  fraud involving impersonation.


=== b) Victim fine surcharge ===
In [https://www.canlii.org/en/ca/scc/doc/2018/2018scc58/2018scc58.html?searchUrlHash=AAAAAQAOciB2IGJvdWRyZWF1bHQAAAAAAQ&resultIndex=2 ''R v Boudreault'', 2018 SCC 58], the Supreme Court of Canada considered the constitutionality of section 737 of the ''Criminal Code'', which removed any judicial discretion to waive the Victim Fine Surcharge. The court ruled that a mandatory victim surcharge amounted to cruel and unusual punishment contrary to section 12 of the ''Charter'' and that “its impact and effects create circumstances that are grossly disproportionate to what otherwise would be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.” The court decided that section 737 was not justified under section 1 of the ''Charter'' and declared that section 737 was of no force or effect. As a result, the courts have discretion to waive the surcharge in appropriate circumstances. The primary reason for waiver of the surcharge is lack of ability to pay.
A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing.  


The coming into force of the ''increasing Offenders' Accountability for Victims Act (October 24, 2013)'' amends the victim surcharge provisions in the ''Criminal Code'' to double the amount  that  an  offender  must  pay  when  sentenced,  and  to  ensure  that  the surcharge is applied in all cases.


The surcharge will be at 30 percent of any fine imposed on the offender. Where no fine is imposed, the surcharge will be $100 for offences punishable by summary conviction and $200 for offences punishable by indictment. In addition, the judge will retain the discretion to impose an increased surcharge where the circumstances warrant and the offender has the ability to pay.  
The current section 737 of the ''Criminal Code'' re-introduces the requirement that judges apply the victim surcharge to all convictions and discharges. However, the court has the discretion to waive the victim surcharge in the event that it would cause undue hardship on the offender, or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender. Where the surcharge is waived, the court must provide reasons for doing so.


Previously,  sentencing  judges  had  the  discretion  to  waive  the  victim  surcharge when it could be demonstrated that its payment would cause undue hardship to the offender or his or her dependents. This legislation removes the waiver option to 1-21 ensure that the victim surcharge is applied in all cases without exception. However, if a victim surcharge is imposed and the client cannot pay, the client’s counsel can argue the client should not be subject to the victim fine surcharge by asking:
{{LSLAP Manual Navbox|type=chapters1-7}}
#the court to make the fine payable forthwith,
#for the fine to be in default for one day,
#for the one day to be deemed served and that the client should not be in custody.

Latest revision as of 21:35, 22 August 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.



It is important to review the elements of the alleged offence to ensure an understanding of what one is charged with.

A. Stay of Proceedings

After reviewing the police report, if there is not a substantial likelihood of conviction, or it would not be in the public interest to proceed, a letter can be drafted to the assigned Crown Counsel requesting that they reconsider the charge. The contact information for the assigned Crown can be obtained by calling the Crown Counsel office in the city in which the charge was laid. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges (e.g., the accused is terminally ill), the Crown may choose to reconsider. A stay of proceedings is a decision to not proceed with the charges. A stay of proceedings appears on the accused’s Vulnerable Sector Criminal Record Check. Therefore, a stay may affect the accused’s employment if they intend to work with children or seniors.


B. Diversion / Alternative Measures

This option allows for a first-time offender to be “diverted away” from the court system. Although referred to as “diversion,” the program’s official name is Alternative Measures (Criminal Code, s 717).


The accused or the accused’s counsel may make a request to the Crown Counsel office to be “diverted”. In some cases, Crown Counsel may also recommend diversion. This program takes the accused out of the court system. The application itself may be made before or after a charge is laid. The diversion program is primarily designed for first-time offenders who are prepared to admit their culpability and remorse in the matter. It is advised to call Crown in advance of sending the diversion application to make sure they are open to it. Include the following in the application:

  1. that the letter is Without Prejudice;
  2. the circumstances of the offence, including a clear admission of all the essential circumstances of the offence;
  3. the background of the accused;
  4. the effect that a criminal record would have on the accused; and
  5. the accused person’s feelings of remorse or repentance for the offence.


The accused must understand the concept of diversion and be prepared to speak openly and honestly to a probation officer. The accused must clearly admit to the offence and express remorse for their commission. They should offer in the diversion letter where applicable, to write a letter of apology, undergo anger or stress management counselling, or make restitution. These options should be considered with the Crown, if possible.


The Crown will consider whether the accused and the nature of the offence are such that diversion is appropriate. If the Crown decides the accused is a good candidate for diversion, the file will be sent to a community worker who will review the circumstances and then discuss the matter with the accused. The accused is entitled to have legal counsel present at this meeting. If the accused admits their culpability, and the probation officer is satisfied that the accused is an appropriate candidate for diversion, the Crown will be so advised. The criminal matter will likely be adjourned to allow the accused to complete the diversion process. The Crown will either enter a stay of proceedings or withdraw the charges once diversion has been completed.


The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with both fixing a trial date and writing a letter of application for diversion. Where an accused has not yet been determined to be an appropriate candidate for diversion, the court is unlikely to grant an adjournment for the purpose of considering diversion. That is, unless Crown Counsel opines that they believe diversion if likely to occur.


See Appendix C and D for an example of an application for diversion.


C. Peace Bond (s 810)

A peace bond is a court order requiring a specific individual to “keep the peace and be of good behaviour”. A peace bond is not a conviction or a guilty plea; however, a peace bond can restrict an accused person’s liberty. Under section 810 of the Criminal Code, the accused enters into a recognizance with conditions. In addition to requiring that the recipient “keep the peace and be of good behaviour”, a peace bond will also set out specific conditions intended to protect a person or a specific type of property, such as not to contact certain persons and/or not to attend a certain address or area. These conditions can last up to one year, and the length of the term can be negotiated with the Crown. Although a peace bond is not itself a criminal conviction, breaching a peace bond is a separate criminal offence.


In order for a peace bond to be imposed, there must exist reasonable grounds for the complainant to believe that the accused will cause personal injury to the complainant or their spouse or child, or that they will cause damage to the complainant’s property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the accused is conceding that the complainant has reasonable grounds for their fear. The accused does not have to admit to all of the facts in the Report to Crown Counsel. However, the accused does have to admit to sufficient facts to form a reasonable basis for the victim to fear them. If there are facts that are in dispute, discuss this with Crown first. If both sides come to an agreement, the court process is similar to a sentencing hearing in terms of the submissions that are made. For more information, see the section on Pleading Guilty, below.


Occasionally, such as when the Crown wishes to impose a peace bond and the accused does not agree, there will be a full hearing on the issue. The Crown often considers peace bonds in cases of spousal assault because of a victim’s reluctance to go to trial. At the hearing, the Crown must prove on a balance of probabilities that there are reasonable grounds for the fear. Hearsay evidence is allowed, as it goes to the informant’s belief that there are grounds for the fear (R v PAO, [2002] BCJ No 3021 (BC Prov Ct)). Since there is no criminal standard of proof, the judge must look at all the evidence, and not focus merely on the absence of the offending conduct (R v Dol, 2004 BCSC 1438).


If a bonded person breaches the peace bond, a criminal charge may be laid against them. Peace bonds are sometimes used as alternatives to criminal charges like uttering threats (Criminal Code, s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the accused is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses their concerns without raising the uncertainty and possible trauma of a trial. An accused should be advised that while a peace bond is not a criminal record, it may affect future hearings, travel outside the country, and decisions concerning custody.


D. Pleading Guilty

A guilty plea is appropriate only when all of the below are true:

  • diversion is not granted;
  • a peace bond is not appropriate;
  • the accused admits guilt;
  • it appears that the Crown will be able to prove its case; and
  • the accused wishes to plead guilty.


Section 606 of the Criminal Code outlines the conditions that need to be met for a court to accept a guilty plea. These include that:

  • the accused is making the plea voluntarily;
  • the accused understands that the plea is an admission of the essential elements of the offence, the nature and consequences of the plea, and that the court is not bound by any agreement made between the accused and the prosecutor; and
  • the facts support the charge.


The court has an obligation to ensure that section 606 has been canvassed with the accused before accepting any guilty plea and should canvass these matters directly with the accused, unless the accused is represented by legal counsel who assures the court that section 606 has been canvassed. Legal counsel should canvass these matters with the client prior to the guilty plea and take detailed notes of this interaction, if there is any doubt about the clients understanding of this interaction counsel should have the court canvass section 606 directly with the accused.


Applying to Strike an Entered Guilty Plea
Legal counsel should bear in mind that accused persons sometimes desire to change their plea after entering a guilty plea and may blame counsel for failing to advise them about the consequences of their plea. An accused may retain new counsel and make an application to set aside the entered guilty plea. In such a situation, solicitor client privilege will usually be set aside, and the lawyer may be forced to take the stand and explain why they believed the client understood the consequences of the guilty plea (see R v Lam, 2020 BCCA 276 (CanLII)).


The sentencing hearing can either proceed immediately after a guilty plea is entered or be adjourned to permit the parties to prepare for the sentencing hearing. For self-represented litigants, duty counsel can assist with a sentencing negotiation with the Crown. It is generally a good strategy to talk to Crown before pleading guilty, about the possibility of a joint submission where both sides agree on a sentence. Most Crown Counsel will agree to a reasonable joint sentencing position and will often stay some charges on a multi-count Information in exchange for a guilty plea on others. It is important to know that the judge is not bound by a joint submission (see R v Anthony‑Cook, 2016 SCC 43). See Appendix E: How to Prepare for and Conduct and Sentencing Hearing for the process of entering a guilty plea.


Consequences of a guilty plea may include, but are not necessarily limited to:

  • possible inability to obtain a passport or to enter the US;
  • difficulty or impossibility of entering some postgraduate fields of study such as law;
  • exclusion from jobs requiring bonds;
  • possible use of the conviction in subsequent proceedings; and
  • possible deportation if the accused is not a Canadian citizen.


E. Sentencing Hearing

The statutory range for all sentences is in the Criminal Code. Always check the statutory range that existed at the time of the offence, as well as at the time of sentencing, as the accused is entitled to the more favourable of the two. Ensure the minimum sentence has not been struck down by a successful Charter challenge or is about to be abolished by an act of Parliament.


Prior to the sentencing hearing the accused and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document. The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Where the parties cannot agree, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see Criminal Code, s 724 for how the court determines disputed facts). Note: Sometimes this will occur in the moment where Crown Counsel summarizes an aggravating fact during their sentencing submissions and the accused and their counsel realizes only then that an aggravating fact was not agreed upon. This may also occur in the process of the defence’s submissions when a mitigating circumstance is summarized.


For serious offences, prior to the actual sentencing hearing, the accused or their counsel should consider whether the guilty person would benefit from seeking a Pre-Sentence Report (PSR) under section 721 of the Criminal Code. A PSR can only be ordered after a guilty plea or finding is made. It is prepared by a probation officer and is considered a “neutral third party” report. It is a formal report and can help or harm the interests of the accused. If the accused is experiencing mental health issues, the PSR can include a psychological report. A favourable psychological report can reduce an accused’s eventual prison sentence. A psychological disorder that makes a person more likely to lose control of their emotions or impulses mitigates the moral culpability of an offender for offences where that emotion or impulse contributed to the occurrence of the offence. Where an accused person desires to obtain a psychological opinion, they should consider obtaining a private psychological report from a psychologist of the guilty person’s choosing instead of a PSR with a psychological component. A private psychological report commissioned by the accused person or their counsel has the advantage of being legally privileged and is only disclosed if it helps the accused. This avoids the possibility that exists with a PSR that the contents of the report will suggest that the offender has limited prospects of rehabilitation, thereby supporting a lengthier custodial sentence.


Crown presents their submissions in the sentencing hearing first. Assuming that there is no substantial disagreement on the facts of the offence, Crown Counsel will simply blend together their summary of the facts of the offence and their position on the appropriate sentence, and the accused or their accused will do the same in reply.


After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Law students should alert their client to the fact that they will be invited to speak after the law student finishes their submissions, and that the only thing that can help them at that point is a heartfelt expression of remorse thought there is no obligation to say anything. Following the accused’s opportunity to personally speak to the court, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see Appendix E: How to Prepare for and Conduct a Sentencing Hearing.


It is important to consult sections 718 and 718.2 of the Criminal Code for the principles in sentencing that the judge will consider and to address these issues when drafting your submissions. The accused should also read up to section 743.1 of the Criminal Code before any sentencing hearing, where various consequences and conditions for various sentences are outlined.


There are two common strategies for presenting the circumstances of an accused. One strategy is to present the lead-up to the offence as a unique set of unusual circumstances that caused a momentary and exceptional loss of control and explain what has changed in the accused’s life to avoid a similar set of unusual and exceptional circumstances. This establishes that the problem has already been resolved and will not recur, and that a harsh sentence is unnecessary. Another strategy is to highlight the disadvantageous life circumstances, such as lack of family support, lack of employment or educational opportunities, mental illness, or addiction, which contributed to the commission of the offence. This lessens the accused’s moral culpability for their conduct.


In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). The default is consecutive. However, if the offences were sufficiently distinct from each other Crown may seek concurrent sentences. The legal test is whether or not the two criminal acts were part of a linked series of acts within a single endeavour. See R v Li 2009 BCCA 85 at para 43.


In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court’s recent position on consecutive vs. concurrent parole ineligibility periods, which speaks to the Charter issues in sentencing, see R v Bissonnette, 2022 SCC 23.


The judge must also consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody.


Gladue Reports
For cases where the offender is Indigenous, reference must be made to section 718(e) of the Criminal Code and the principles laid out in R v Gladue, [1999] 1 SCR 688. Section 718(e) of the Criminal Code, which states that judges must pay attention to the circumstances of Aboriginal offenders, was implemented in 1996 in an attempt to address the over representation of Indigenous Peoples within Canadian prisons. Gladue followed shortly thereafter in 1999, and established that judges must consider Gladue principles when making decisions in cases with Indigenous offenders. This means that a judge must consider the personal and unique circumstances of the accused as well as the particular hardships they have faced, resilience they have demonstrated, and ways to support them that would address their challenges. The judge should consider the accused’s life experience and what has happened to them, their friends, family and community. The Supreme Court in Gladue specifically outlined that sentencing judges must pay attention to:
  1. The unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and
  2. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of his or her particular Indigenous heritage or connection.


The Crown, defence counsel, and the Indigenous individual must give the judge the information they need to make an assessment based on Gladue principles. This can be done through a Gladue report, which is a report that lays out a holistic profile of an Indigenous individual and how they have come to be before the court. These reports are based on interviews with the individual, friends, family, and community members as well as information about their family background and the effect of colonization. A Gladue report is different than a Pre-Sentencing Report and should be prepared by someone with experience preparing these reports and insight into Indigenous communities. The BC First Nations Justice Council has provincial responsibility for Gladue services and offers the opportunity to request a Gladue report from a roster of experienced Gladue report writers: https://bcfnjc.com/information-for-the-public/.


It is important to note that, even if there is no Gladue report present, lawyers still have an obligation to bring information relevant to Gladue principles before the court in every case and judges have an obligation, not just to reference those principles, but provide an explanation of how they applied them when it comes to sentencing. Gladue principles apply to all offences under the Criminal Code.


For further information on Gladue principles and reports see the Gladue Report Guide published by the Legal Services Society in collaboration with the BC First Nations Justice Council: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://pubsdb.lss.bc.ca/pdfs/pubs/Gladue-Report-Guide-eng.pdf.


F. Types of Sentences

1. Absolute and Conditional Discharges

Discharges are outlined in section 730 of the Criminal Code:

  • Discharges are available if the accused is not subject to a minimum penalty and the offence is not one punishable with a maximum sentence of 14 years of imprisonment or more.
  • A discharge means that there has been a finding of guilt rather than a conviction. At the end of the discharge period, the accused has no criminal record.
  • The discharge must be in the best interests of the accused and not be against the public interest.
  • An absolute discharge means that the accused has no criminal record immediately upon being sentenced.
  • A conditional discharge means that the accused is on probation, with certain conditions, for a period of time. If the accused follows the rules, at the end of the probation period they are treated as if there were no conviction and will not have a criminal record.
  • An absolute discharge is granted immediately without terms or conditions, whereas the effect of a conditional discharge is that the accused is on probation for a period of time. This can involve a number of various conditions by which the accused must abide. If the accused successfully completes the period of probation with no breaches or further criminal offences, the conviction is discharged, and the offender can say they have no prior convictions. It is important to note however that an absolute or conditional discharge still requires a finding of guilt.
  • Both an absolute discharge and a conditional discharge (as well as the probation order that accompanies it) will be visible on some background checks, including vulnerable sector checks, for several months after they are entered into/the probation order ends. However, the guilty party still does not have a criminal record.
NOTE: Each of the sentences listed below results in a conviction and a criminal record.


2. Suspended Sentences and Probation

If the judge believes, having regard to the age, character, and personal circumstances of the individual, that the accused can rehabilitate themselves, the judge can suspend the passing of sentence and release the accused subject to the terms of a probation order of up to three years (Criminal Code, s 731(1)(a)). This does not mean that the accused has been acquitted; the accused will have a criminal record.


This sentence is only available if the accused is not subject to a minimum penalty. Probation means that the accused has to follow certain conditions that the judge sets. For example, the accused will have to stay out of trouble, report to a probation officer (someone who keeps track of the accused), and obey other court-imposed conditions. An order for a suspended sentence means that the courts suspend the passing of a sentence for the duration of the probation period. If a person breaches the conditions of a suspended sentence the court may extend the length of the probation period or (in rare cases) revoke the suspension of sentence and substitute a jail sentence for the suspended sentence. In addition, the breach is a new criminal offence, and the accused may be charged with a breach of the probation conditions.


3. Fines

Under section 734 of the Criminal Code, an accused may be fined in addition to, or in lieu of, another punishment for offences punishable by imprisonment of five years or less for which there is no minimum penalty.


A fine can be ordered on its own or in addition to probation or imprisonment (but not both). An accused may be fined up to $5,000 for summary conviction offences (or a hybrid offence wheretheCrownelectstoproceedsummarily),or any amount for indictable offences. Before a court imposes a fine, it must inquire into the ability of the accused to pay the fine.


4. Restitution and Compensation

Restitution orders can be made as “stand-alone” orders imposed as an additional sentence (s 738 of the Criminal Code) or as a condition of probation or conditional sentence order by the court. The restitution can be ordered for the cost of repairing any property damage, replacing lost or stolen property, or any physical or psychological injuries suffered by a victim that required the victim to incur out of pocket expenses or resulted in a loss of income.


5. Conditional Sentence Order (CSO)

This is a jail sentence and occurs when a court orders the accused to serve their jail sentence in the community. It is not available when there is a minimum sentence of imprisonment, when there is a term of imprisonment of two years or more imposed, or where the offence involved a serious personal injury. The term “conditional” refers to rules the offender must follow in order to remain out of jail. The conditions are often similar to conditions imposed in a probation order; however, a curfew is almost always imposed. An accused that breaches any of their conditions or commits a new crime may be ordered to complete the remaining portion of the CSO in prison.


6. Imprisonment (Jail)

Unless otherwise stated by statute, if the offence is a summary conviction offence (or Crown elects to proceed summarily), the maximum sentence of imprisonment is two years less a day; and if the offence is an indictable offence (or the Crown elects to proceed by indictment), the maximum sentence of imprisonment is 5 years. There are many offences where the maximum sentence available is in excess of 5 years. A judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence the accused is serving, or any other sentence arising out of the same transaction.


If the total sentence is two years or more, the accused will serve their sentence in a federal penitentiary. If the total sentence is less than two years, the accused will serve their sentence in a provincial jail. An accused should note that “two years” includes time already served before trial. So, a person who is sentenced to two years less a day of imprisonment, but has served one year in jail, while awaiting their trial, will be sent to a provincial penitentiary. If the jail sentence is provincial, a sentence of probation of up to 3 years can be added. If the jail sentence is federal, the court cannot add a probationary order to that sentence.


If a judge imposes a sentence not exceeding 90 days, they may order that the sentence be served intermittently on certain days of the week or month. The accused is released on the other days, subject to conditions of a probation order.


G. Matters Ancillary to Sentencing

1. DNA Data Bank

If an offender is convicted of a “primary designated offence” enumerated in Section 487.04 of the Criminal Code – for example, sexual interference (s 151) and sexual exploitation (s 153) – a court must order the taking of bodily substances for the purposes of forensic DNA analysis, unless the impact on the person’s privacy would be “grossly disproportionate” to the public interest.


The court may also consider the criminal record of the offender, the nature of the offence, and the circumstances surrounding its commission. The court may also, at its discretion, make a DNA order upon conviction or discharge of a “secondary designated offence” – such as assault (s 265) – but the threshold for obtaining a DNA order is higher for these offences. Once the substance is analyzed, it is then entered into the Convicted Offender Index of the national DNA Data Bank. The data bank is widely used for many different types of crimes ranging from violent crimes to fraud involving impersonation.


2. Victim Fine Surcharge

A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing.


In R v Boudreault, 2018 SCC 58, the Supreme Court of Canada considered the constitutionality of section 737 of the Criminal Code, which removed any judicial discretion to waive the Victim Fine Surcharge. The court ruled that a mandatory victim surcharge amounted to cruel and unusual punishment contrary to section 12 of the Charter and that “its impact and effects create circumstances that are grossly disproportionate to what otherwise would be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable.” The court decided that section 737 was not justified under section 1 of the Charter and declared that section 737 was of no force or effect. As a result, the courts have discretion to waive the surcharge in appropriate circumstances. The primary reason for waiver of the surcharge is lack of ability to pay.


The current section 737 of the Criminal Code re-introduces the requirement that judges apply the victim surcharge to all convictions and discharges. However, the court has the discretion to waive the victim surcharge in the event that it would cause undue hardship on the offender, or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender. Where the surcharge is waived, the court must provide reasons for doing so.

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