Resolving Criminal Matters Prior to Trial (1:VI): Difference between revisions
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Resolving Criminal Matters Prior to Trial (1:VI) (view source)
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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''. 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 | 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. | ||
:'''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 == | |||
=== a)Absolute or conditional discharge === | |||
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. | |||
*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. | |||
*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. | |||
*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. | |||
:'''Note:''' Each of the sentences listed below results in a conviction and a criminal record. | |||
=== b) Suspended sentences and probation === | |||
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 === | |||
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 $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. | |||
=== 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) === | |||
''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) === | |||
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 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 == | |||
=== 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. | |||
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 === | |||
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. | |||
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: | |||
#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. | |||