Sentencing Considerations

If you plead guilty or are found guilty after trial, a judge (not a jury) will decide your sentence after hearing from you and/or your lawyer and the Crown. In some cases the victims and other witnesses may give statements. 

The judge will try to come up with a fair sentence by balancing:

1. the circumstances of the offence
2. the circumstances of the offender (including factors related to their background as an Aboriginal person if applicable)
3. the seriousness of the offence (including the impact on the victim)
4. the offender’s degree of responsibility

Indigenous Offenders 

If you identify as Indigenous, the judge must consider the unique circumstances and experiences of Indigenous peoples when determining a fit sentence. The unique challenges faced by Indigenous peoples in Canada are called Gladue factors and include:

• the ongoing effect of colonization on you and your community,
• racism,
• loss of language,
• the impacts of the residential school system and foster care system

Judges must consider sentences other than jail, such as restorative justice programs. They may still decide jail is an appropriate sentence.

Reports

To better understand the offender, the judge may request a pre-sentence report prepared by a probation officer. A pre-sentence report will give more information about the offender’s background and current circumstances. 

A Gladue report may be prepared for Indigenous offenders to help the judge understand the factors particular to Indigenous people that may have contributed to the offender ending up in court. See Are you Indigenous? 

A victim impact statement allows the victim to tell the offender and the court how the offender’s action impacted them.

The main purpose of sentencing is to contribute to respect for the law and to a just, peaceful, and safe society by imposing fit sentences that have one or more of the following objectives:

• denounce the unlawful conduct and harm to the victim;
• deter (discourage) the offender and others from committing such crimes;
• separate offenders from society when necessary;
• assist in rehabilitating the offender;
• provide reparations for harm done to the victim and the community; and
• promote a sense of responsibility in offenders and acknowledgment of the harm done.

The sentence should match the offender's degree of responsibility for the offence.

Types of Sentence

Absolute or Conditional Discharge: For less serious offences only. If you are discharged, a conviction will not be registered on your criminal record. If you are given a conditional discharge you must agree to and follow certain conditions on a probation order for a certain amount of time before you are discharged. If you are given an absolute discharge, you are discharged right away and do not have to follow any conditions. 

Suspended Sentence and Probation: If you are given a suspended sentence you will have to follow a probation order with conditions for a certain amount of time up to 3 years. Unlike with a conditional discharge, a conviction will be recorded and you will have to apply for a pardon to remove it from your criminal record.

Fine: A fine can be imposed on its own or in combination with imprisonment or probation. If you are convicted of a summary offence, the maximum fine is $5,000.

Conditional Sentence: If the judge imposes a sentence of less than 2 years imprisonment, the judge may order that it be served in the community with conditions in some cases. 

Imprisonment: Imprisonment is the most serious penalty. The type of offence the offender is convicted of determines the range of prison time a judge can impose. Summary offence convictions have a maximum prison time of 6 months. Indictable offences can range all the way to life in prison without parole eligibility for 25 years. 

• Intermittent Sentence: If an offender is sentenced to less than 90 days in prison, a judge may order that they serve it blocks of time while being released on a probation order in between. This can allow an offender to continue to maintain work or take care of a child.

• Dangerous offender: The Crown can apply for someone to be declared a dangerous offender. Dangerous offenders can be sentenced to an indeterminate (without an end date) length of time in prison. Their imprisonment will be reviewed every 7 years.