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

== E.Types of sentences ==

Discharges are outlined in section 730 of the Criminal Code:

* They 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   

:'''NOTE:''' '''Each of the sentences listed below results in a conviction and a criminal record'''.

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; '''at the expiry of their probationary period, the accused will still have a criminal record'''. This is an important difference between a suspended sentence 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.  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).  

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.  

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.

'''This is a jail sentence''' and occurs when a court orders the accused to serve their 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 their conditions or commits a new crime may be ordered to complete the remaining portion of the sentence in prison.

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 (two years less a day after December 18, 2019); 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.

== F. Matters ancillary to sentencing ==

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.

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