Chapter 11 Flashcards
Sentencing Guidelines and Decisions
Canadian Sentencing Commission (1987) defines sentencing as “the judicial determination of a legal sanction to be imposed on a person convicted of an offence,” and it is perhaps one of the most controversial areas of the criminal justice system (Doob, 2011; Roberts, 1991). Early in Canada’s history, judges had few legal guidelines to help them craft appropriate sentences, leaving them with considerable discretion to impose sanctions. This resulted in tremendous disparity in sentencing. Sentencing disparity refers to inequality in criminal sentencing that results from unfair or unexplained causes rather than from a legitimate use of discretion in the appli- cation of the law.
Section 718 of the Criminal Code outlines the following guidelines:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community;
and (f) to promote a sense of responsibility in offenders, and acknowledgment of
the harm done to victims and to the community. (R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.)
As Section 718 makes clear, sentencing is intended to serve a variety of purposes. The simplest goal is incapacitation through containment (e.g., sep- arating offenders from society). If a criminal is securely contained inside prison walls, he or she is unable to harm people outside the prison. Another goal, denunciation of the criminal act, is less practical and more emotional.
Because societies are held together, in part, by a shared consensus of what constitutes immoral behaviour, law-abiding members of society feel a justified sense of moral outrage when someone commits a terrible crime. A criminal who violates the moral order must be punished to restore moral balance. For a particular criminal, it is hoped that the experience of prison will dissuade him or her from committing further crimes after being released (this is called spe- cific deterrence). We also hope for general deterrence—that other people will choose not to commit crimes because they fear imprisonment or other criminal sanctions.
reparations to repay or repair the harm that was done, which can instill a sense of responsibility on the part of the offender. Nearly all offenders will eventually be released back into free society, so it makes sense to try to rehabilitate offenders during their time in prison.
fundamental principle of sentencing
“A sen- tence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Section 718.1). Generally speaking, offenders who commit more serious offences should be given more severe sentences, but a judge must also consider a number of sentencing principles in his or her decision:
1. Judges must consider the aggravating and mitigating circumstances relat- ing to the offence.
Aggravating factors are those that would increase the harshness of a sen- tence, such as:
• an offender’s previous history of convictions • whether the offence involved multiple victims • whether the offence involved severe aggression or violence • whether the offence involved a breach of trust or domestic violence.
Mitigating factors are those that would decrease the harshness of a sen- tence, such as:
• an offender’s youthfulness • an absence of previous convictions • limited involvement in a crime (e.g., a bystander versus an instiga-
tor) (The Law Society of Upper Canada, 2013, Part 6).
2. For offenders who commit similar offences, similar sentences should be imposed if the offences are committed in similar circumstances.
3. For consecutive sentences, the combined sentence that is imposed should not be excessively long or harsh.
4. Judges are to give sentences of imprisonment as a last resort, only to be used in cases where less restrictive sanctions are inappropriate.
5. Judges should consider “all available sanctions other than imprisonment that are reasonable in the circumstances … for all offenders
framework outlined in the Criminal Code (Sections 718 to 718.2), judges have to craft a specific sentence that
(1) is consistent with sentencing objectives (2) fits the crime (3) addresses the specific risks and needs of a given offender.
various sentencing options
include absolute discharge, a conditional discharge or sus- pended sentence, probation (which can include supervised and unsupervised terms), a fine, restitution, or a period of incarceration. As you can see, the majority of sentencing options are served in the community, either with or with- out the supervision of a probation officer. Imprisonment can also be ordered in a number of ways, including
(1) continuous term (e.g., 12 months of straight time)
(2) conditional term (sentence may be served in the community under certain conditions)
(3) intermittent term (custody time can be served on weekends)
(4) indeterminate term (no fixed time period is specified; see Chapter 10 for a review of indeterminate sentencing).
A court may also impose a term of life imprisonment. As mentioned in Chapter 10, in Canada, “life in prison” does not involve spending the rest of one’s life in prison. Rather, life in prison is set at a maximum of 25 years. Further, offenders are not typically required to serve the full sentence in prison and can apply for parole after serving two-thirds of their sentence in custody, a practice known as statutory release. Following statutory release, offenders serve the remaining portion of their sentence in the community under the supervision of the Parole Board of Canada.
Other parole eligibility options include accelerated parole, which allows first-time, nonviolent offenders to access day parole after serving only one-sixth of their sentence. Accelerated parole allows offenders to leave the correctional institution unescorted, but they are restricted by many conditions and they must return in the evenings
Absolute discharge Conditional discharge
Suspended sentence Probation
Restitution Fine Incarceration
• A finding of guilt but no conviction is registered and the offender is not given conditions to follow.
• An absolute discharge will remain on the offender’s criminal record for 1 year.
• No conviction is registered but the offender must follow conditions and report to a probation officer.
• A conditional discharge stays on the offender’s record for 3 years after completion of the probation order.
• A conviction is entered on the offender’s record. • The offender must follow conditions of a probation order for a period of 1 to 3 years. • Offenders may apply for a pardon to have the conviction removed from their records.
• Probation is a court order to do (or not do) certain things for a period of time.
• An offender with a conditional discharge or suspended sentence will always have a probation order he or she must follow.
• Probation orders can be combined with a fine and conditional sentence, intermittent sentence, or imprisonment.
• The maximum length of a probation order is 3 years.
• Many require the offender to report to a probation officer who will supervise his or her behaviour.
• Offenders who break their probation conditions can be charged.
• An offender is ordered to pay a sum of money to compensate a party for proven loss.
• Restitution can be ordered either as a term of probation or as a stand-alone restitution order.
• A fine is an amount of money that an offender must pay to the court.
• Offenders given a fine will have a conviction registered and will have to apply for a pardon to have the fine removed from their records.
• Imprisonment is a custodial sentence to jail or prison.
• Sentences for 2 years less 1 day are served at a provincial institution; longer sentences are served at federal penitentiaries or prisons.
Types of Prisons
penitentiaries, institutions, jails, detention centres, and remand centres. “Penal institution” implies a place of punishment, the term “penitentiary” is religious in origin and refers to a place where one can repent and atone for one’s sins, and the term “correctional institution” suggests a place where the behaviour of the criminal can be improved or corrected. No matter the terminology, jails and correctional institutions form an important component of our system of criminal punishment and responsibility.
Jails might consist of short- term holding cells operated by cities and administered by local authorities (such as municipal police or the RCMP). Remand centres are operated by the prov- inces and territories. They hold a wide variety of offenders, including potentially dangerous offenders charged with serious violent crimes being held before and during trial or between conviction, sentencing, and transportation to a pro- vincial, territorial, or federal correctional institution. Provincial and territorial correctional centres, prisons, and penitentiaries hold convicted criminals for longer periods of time, sometimes decades. However, while offenders sentenced to 2 years less 1 day of custody will spend their sentence under the supervision of a provincial correctional centre
minimum-security institutions for offenders convicted of non- violent or less serious charges, or those who have demonstrated positive and low-risk behaviour for a long period of time in custody.
maximum-security institutions, which provide the highest level of security in Canada. These facilities include perimeters that consist of walls or high fences and control towers posted with armed correctional officers. Inmate movement, opportunities for interacting with other inmates, and privileges are strictly regulated.
