90From Sentencing to Release

Chapter 9

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Criminal Sentencing• Sentencing a convicted person is one of the

most complex parts of the legal system.• A judge must weigh several factors when

deciding how to sentence an offender.• In Canada, a judge has numerous sentencing

options, which range from releasing the accused to imprisonment.• The sentencing process is controversial to

many Canadians, as most convicted offenders do reintegrate back into society at some point.• There is constant debate over how “hard” or

“soft” convicted offenders should be treated by the justice system.

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Purposes of Sentencing

• In 1995, the Criminal Code was amended to provide judges with clearer direction when sentencing convicted offenders.

• Each sentence issued by a judge should reflect as many of these four objectives as possible:

1. denouncing unlawful conduct

2. deterrence

3. separation or segregation

4. rehabilitation

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Denouncing Unlawful Conduct

• Part of any criminal sentence should involve denouncing or condemning unlawful conduct.• It should be clear to the offender that what he or

she did was wrong from the viewpoint of society.• When convicted offenders are sentenced, their

character and past behaviour are considered. • If they are repeat offenders or if the crime they

committed is severe, their behaviour will be denounced in the strongest terms, and that should be reflected in the sentence they receive.

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Deterrence

• A sentence is supposed to deter or prevent an offender from committing more crimes.

• Deterrence can be divided into two types:

1. Specific deterrence: a sentence that discourages a particular criminal from reoffending or committing another crime in the future.

2. General deterrence: a sentence that discourages the general public from committing a particular crime.

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Segregation

• Another purpose of criminal sentencing is to separate or segregate offenders from society.• This usually involves incarcerating the offender

(putting them in prison).• Incarceration is not always necessary. If an

offender is not considered dangerous, they may avoid a prison sentence and be reintegrated into society sooner.• As of 2008, Canada’s incarceration rate per

every 100,000 people was much lower than the U.S.’s and one of the lowest in the world.

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Rehabilitation

• Since most convicted offenders rejoin society at some point, the Criminal Code also states that a sentence should try (in part) to assist or rehabilitate offenders so they can avoid a life of crime.• Recidivism is the act of recommitting crimes -

being a repeat offender.• Rehabilitation looks to provide offenders,

particularly prison inmates, with important skills they need to be productive members of society.• Examples of rehabilitative programs include

job training, counselling, and opportunities for education.

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Other Objectives

• In addition to denouncing unlawful conduct, specific and general deterrence, segregation and rehabilitation, there can be a few other objectives in sentencing:

1. Reparations: repaying victims and/or the community for harm done

2. Remorse: judges will consider whether or not the offender expresses sincere regret for his or her guilty actions

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Imposing a Sentence

• In Canada, judges usually have discretion when imposing sentences. • For some cases, there are mandatory minimum

sentences created by Parliament that a judge must follow.• Before a judge issues a sentence, he or she

reviews a pre-sentence report on the offender.• This report may include aggravating and

mitigating circumstances as well as victim impact statements.

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Factors in Sentencing

A judge considers…

• Aggravating circumstances: factors that demonstrate the punishment should be more severe; the sentence should be harsher.• Mitigating circumstances: factors that

demonstrate the punishment should be less severe; the sentence should be less harsh.• Victim impact statement: a statement made by

the victim (or on their behalf) that describes how the offence affected his or her life and loved ones.

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Sentencing Options

• When many Canadians hear the term “sentencing,” they think of imprisonment. However, there are several other options available to a judge:

1. Absolute or conditional discharge

2. Suspended sentence and probation

3. Conditional sentence

4. Suspension of a privilege

5. Peace bond

6. Restitution or compensation

7. Community service

8. Deportation

9. Fines

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Discharges• For a crime that carries a maximum sentence

of less than 14 years, an offender may receive one of two possible discharges.

1. Absolute Discharge: offender is released without conditions and with no criminal record.

2. Conditional Discharge: offender is released with conditions or terms, which, if completed, result in no criminal record for the offender.

• Discharges are usually only granted if it is the offender’s first offence and it is not a very serious crime.

• Although there is no criminal record, it is noted that the offender was granted a discharge.

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Suspended Sentences

• A suspended sentence is a punishment that is not carried out as long as certain conditions are met; this sentence usually involves probation.• Probation: a punishment that allows an offender

to live in the community, but with certain conditions and supervision (reporting to a probation officer).• The main difference between a suspended

sentence and an absolute or conditional discharge is that with a suspended sentence there is a record of criminal conviction.

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Conditional Sentence

• If the maximum sentence is less than two years, a judge may impose a conditional sentence.• This sentence allows the offender to serve their

time in the community instead of prison.• A judge must be reasonably sure the offender is

not a threat to the public.• The offender must also “keep the peace and be

of good behaviour.”• Additional orders may include curfews, or

abstaining from drugs and alcohol.

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Suspension of a Privilege

• This sentence takes away a privilege from a convicted offender for a specific or indefinite period of time.• The most common suspension of a privilege is

a driver’s licence. Another common example is suspending restaurant liquor licenses.• A driver’s licence is usually surrendered to the

court clerk by the driver before he or she leaves the courtroom.• Liquor licences are often removed if an

establishment has violated liquor laws and regulations.

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Peace Bond

• This sentence comes in the form of a court order requiring a person to keep the peace for up to 12 months.• A peace bond is a common sentence in

harassment or assault cases that are not very serious.• A common criterion for a peace bond includes

staying away from a certain person or place. • If the conditions of the peace bond are met

successfully, the charges against the accused may be withdrawn.

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Restitution

• Also referred to as compensation, this sentence requires the offender to “pay back” the victim for the harm or loss he or she created.• Restitution usually comes in the form of $$$.• A victim may ask the court to consider imposing

restitution at the time of sentencing.• A judge considers the offender’s ability to pay

when deciding the amount of compensation to impose in a sentence.• Restitution may also include making the

offender work for the victim, although this is not common.

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Community Service

• This sentence orders the offender to perform specific work in the community.• A judge can dictate how many hours an offender

must work in the community as well as the nature of that work.• The objective of community service orders is

to associate the offender with people in the community who are not criminals. This is supposed to decrease the possibility of recidivism.

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Deportation & Fines• If a non-citizen commits a criminal offence in

Canada, it is possible to sentence him or her to be deported—sent back to his or her country of origin.• Canadian residents who commit serious crimes

in other countries may also be extradited (returned) to that country to stand trial.• For many summary conviction offences, an

offender may be fined instead of receiving another type of sentence. Fines may also be given for indictable offences.• If offenders cannot afford to pay, they may be

enrolled in a fine option program, to work in the community to pay off the debt.

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Prison

• The most serious criminal sentence an offender can receive is imprisonment.

• There are various types of prison sentences as well as different types of prisons used to incarcerate offenders.

1. Local detention centre: if the sentence is 30 days or less

2. Provincial prison: if the sentence is between 30 days and 2 years

3. Federal prison: if the sentence is between 2 years and life in prison

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Prison Sentences

Types of prison sentences include…

1. Concurrent: a prison sentence for two or more offences; to be served at the same time.

2. Consecutive: a prison sentence for two or more offences; to be served one after another.

3. Intermittent: a prison sentence of 90 days or less that is served on weekends or at night.

• The principle of totality is a rule that looks at all the circumstances of a prison sentence to ensure that it is fair.

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Dangerous Offenders

• A convicted offender who is considered a very serious risk to the public may be given an indeterminate sentence. This means that he or she will be in prison indefinitely.• A dangerous offender

– displays a brutality that is abnormal.– has a pattern of aggression that is unlikely to change.– is indifferent to the effects of his or her behaviour.– possesses sexual impulses that may cause pain or

injury to others.

• An indeterminate sentence can end if authorities decide the offender is no longer dangerous.

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Capital Punishment

• In 1976, Parliament abolished (removed) capital punishment, also known as the “death penalty,” from the Criminal Code.• Prior to 1962, a person could be sentenced to

death in Canada if they were found guilty of first degree murder.• After 1962, all death sentences were commuted

(switched) to life imprisonment, which eventually led to the official cancellation of capital punishment in a close vote in 1976.• In 2001, the Supreme Court reaffirmed Canada’s

rejection of the death penalty.

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Restorative Justice

• A recent approach to criminal sentencing is restorative justice, which focuses on forgiveness and involves the community.• Sentencing circles: common in Aboriginal

communities; the offender, victim, and others in the community are brought together to decide on the offender’s punishment.• Healing circles: an opportunity for an offender

and his or her victim to voice their feelings and resolve their conflict.• Releasing circles: also common in Aboriginal

communities and parole boards; a plan is prepared to return the offender to society.

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Compensation Funds

• Each province has a victim compensation fund. This is public money to compensate a victim if any of the following circumstances exist:– lost pay– pain and suffering from injuries– medical bills and prescriptions– loss of income by dependants if victim dies

(e.g. funeral expenses)– child support for the offspring of sexual assault

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Appeals

• Both the Crown and the convicted offender have the right to appeal a conviction or sentence.• An appeal asks the court to review and

reconsider the conviction and/or sentence that has been imposed.• The party who requests the appeal is the

appellant and the party who opposes the appeal is the respondent.

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Parole

• Prison inmates are usually eligible for parole after they have served 1/3 of their sentence or 8 years, whichever comes first.• A parole board reviews the offender’s

behaviour in prison and decides whether or not to grant parole—early release from prison.• A parolee must report to a supervising officer

and follow certain conditions until his or her sentence is complete. If parolees violate any condition, they can be returned to prison.• Full parole is not usually granted to offenders

convicted of first degree murder before 25 years.

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Mercy

• The federal government has the power to grant a Royal Prerogative of Mercy, which means they can revoke a prison sentence or issue a pardon.• A pardon is granted when an offender is

officially excused from a crime.• Parole boards review cases and advise the

solicitor-general’s office regarding pardons, which are often granted if a person appears to have been wrongfully convicted.

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Criminal Records

• Having a criminal record may create many difficulties for a convicted offender in addition to embarrassment and humiliation.• A criminal record may hinder or restrict job

opportunities as well as the ability to travel. • Many jobs involve bonding, which guarantees

the honesty of a person who handles money and other valuables. A person with a criminal record usually cannot be bonded. • A convicted offender may apply for a pardon;

usually 3–5 years after completing his or her sentence.