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

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{{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 at this point to review the elements of the alleged offence to ensure an understanding of what one is charged with.
 
{| class="wikitable"
! style="font-style: italic;text-align: left;" | Practice Recommendation - Ensuring the Crown can Prove Its Case
|-
| 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. 
|}
 
{| 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 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.
 
''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:
 
''"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.
 
''"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).
|}
 
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 ==
== 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 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.
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. 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.  


== B. Diversion / alternative measures ==
== 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:
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 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 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,
*That the letter is Without Prejudice,
*The circumstances of the offence, including a clear admission of all the essential circumstances of the offence,
*The circumstances of the offence, including a clear admission of all the essential circumstances of the offence,
*The background of the client,
*The background of the accused,
*The effect that a criminal record would have on the client, and
*The effect that a criminal record would have on the accused, and
*The client's feelings of remorse or repentance for the offence.
*The accused's'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.


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 accused must understand the concept of diversion and be prepared to speak openly and honestly to a probation officer. The accused must clearly admit the offence and express remorse for his or her 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.


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.
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 his or her culpability, and the probation officer is satisfied that the accused is an appropriate candidate for diversion, the Crown will be so advised. 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 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 a pending application for diversion can be used as partial justification for applying for an adjournment, that application may not be successful and one should be prepared to move the court process forward at the same time as he or she is 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.


== C. Peace Bond (s 810) ==
== 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.
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 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 accused 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 accused. 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.


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)).  
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)).  
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*diversion is not granted,
*diversion is not granted,
*a peace bond is not appropriate,
*a peace bond is not appropriate,
*the client admits guilt,
*the accused admits guilt,
*it appears that the Crown will be able to prove its case, and
*it appears that the Crown will be able to prove its case, and
*the client wishes to plead guilty.
*the accused 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.
If an accused person wishes to plead guilty then the court appearances should be adjourned to allow sufficient time to “negotiate” with Crown Counsel for the most appropriate sentence. For self-represented litigants, a duty counsel will assist with a sentencing negotiation with a Crown. 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 Counsel will be eager to agree to a reasonable sentencing position. Whether an agreement can or cannot be reached with the Crown, a sentencing hearing will be scheduled at which the accused/defence can present his/her position. If an agreement is reached with Crown, it is important to know that the judge is not bound by a joint submission.
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:
Consequences of a guilty plea may include, but are not necessarily limited to:
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*possible deportation if the client is not a Canadian citizen.
*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.
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 when the offences are unrelated and of a serious nature.


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


=== 1. Speaking to sentence (sentencing hearing) ===
=== 1. Speaking to sentence (sentencing hearing) ===
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]].
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.  
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''. One 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.
There tend to be two broad strategies for presenting an accused person’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 accused to avoid a similar set of unusual and exceptional circumstances. The accused should seek to show the court that the problem has already been cured and will not recur, and such 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. The accused should then show that he/she has changed his or her outlook and is seeking to turn his/her life around.  This involves in part an understanding of an accused person’s own situation, and an understanding of the severity of the offence.


:'''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.
:'''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.
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*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.
*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.
*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 there is 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 he or she is treated as if there were no conviction and will not have a criminal record.
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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.  
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.
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. 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 convicted for a breach of the probation conditions (typically 2 or 3 days of jail time for a first offence or weeks of imprisonment for repeat offenders.)


=== c) Fines ===
=== c) Fines ===
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=== e) Conditional Sentence Order (CSO) ===
=== e) Conditional Sentence Order (CSO) ===
''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.
''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) ===
=== f) 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 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.  
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 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 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. An accused should note that “two years” includes time already served before trial. So, a person who is sentenced to two years of imprisonment, but has served one week in jail, will not be sent to a federal penitentiary.  
 
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.
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.


== F. Matters ancillary to sentencing ==
== F. Matters ancillary to sentencing ==


=== a) DNA Data Bank ===
=== a) 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.  
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 – 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.


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 ===
=== b) Victim fine surcharge ===
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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 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 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.


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:
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/her dependents. This legislation removes the waiver option to ensure that the victim surcharge is applied in all cases without exception. However, the legislation has been found unconstitutional and many judges are no longer imposing the victim fine surcharge where it would be a financial hardship.  
#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.


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