Sentencing

Question 1

Purpose of Sentencing – s. 718

Answer 1

1) Denounce
2) Deter (general + specific)
3) Separate from society
4) Rehabilitation
5) Reparations to victims
6) Sense of responsibility and acknowledgment of harm done

Question 2

Fundamental Principle of Sentencing – s. 718.1

Answer 2

Must be proportionate to the gravity of offence and degree of responsibility

Question 3

Other Sentencing Principles s. 718.2

Answer 3

• the court shall take into consideration in sentencing 5 factors :
  1) Sentence up/down based on relevant agg/mit factors:
  o Motivated by bias/prejudice
  o Abused spouse or common-law partner
  o Abused person under 18
  o Abused a position of trust or authority
  o Committed at direction /association with crim org.
  2) Similar to similar offenders for similar offences in similar circumstances
  3) Consecutive sentences, if imposed, not unduly long/harsh
  4) Not be deprived of liberty if less restrictive available
  5) All other available sanctions that are reasonable to be considered other than jail– particularly for aboriginals

Question 4

Offences against Children – s. 718.01

Answer 4

• Abuse of person under 18, primary consideration given to denunciation and deterrence

Question 5

Plea to Lesser Included Offence – s. 606(4)

Answer 5

• any offence arising from same offence, whether or not included offence
• requires consent of prosecutor

Question 6

Party to an Offence – s. 21

Answer 6

1) Commits it
2) Does/omits anything for purpose of aiding main party
3) Abets any person in committing
4) Commits an offence for purpose of common intention

Question 7

Absolute/Conditional Discharge – s. 730

Answer 7

1) No min sentence or punishable by imprisonment for 14 yrs or life
2) Best interest of A
3) Not contrary to public interest
- If breach of prob, court can enter conviction

Question 8

Mandatory Terms of Probation Order – s. 732.1(2)

Answer 8

1) KPGB
2) Appear before a court when required to do so
3) Notify court / PO of change of residence in advance and promptly if change of employment

Question 9

Optional Terms of Probation Order – s. 732.1(3)

Answer 9

1) Report to PO within 2 working days
2) Remain in jurisdiction
3) Abstain from drugs and/or alcohol
4) No weapons
5) Provide support/care for dependents
6) Perform up to 240hrs CSO over period not > 18 mts
7) If A agrees, participate in treatment program
8) Curative treatment if A agrees for alcohol/drugs
9) Interlock device if A agrees
10) Comply with all other reasonable conditions

Question 10

Conditional Sentence – s. 742:

Answer 10

• Not appropriate when denunciation/deterrence particularly pressing
• House arrest/curfew the norm

Question 11

Definition – s. 742.1 (Requirements for Conditional Sentence)

Answer 11

1) Not endanger safety of comm. & consistent with purpose/principles of sentencing (s.718-718.2);
2) Term of prison <2 yrs;
3) No man minimum
4) Not a terrorism/crim org offence, prosecuted by indict, with max of 10 yrs or more; and

Question 12

Conditional Sentence Mandatory Terms - 742.3(1)

Answer 12

Mandatory Terms – s. 742.3(1)

1) KPGB
2) Appear in court
3) Notify in advance of change of name/address, promptly of employment
4) Report to supervisor within 2 days, and then as required
5) Remain within jurisdiction

Question 13

Conditional Sentence Optional Terms - 742.3(2)

Answer 13

1) Abstain from drugs and/or alcohol
2) No weapons
3) Provide support/care for dependents
4) Perform up to 240hrs CSO over period not > 18 mts
5) Attend for treatment program
6) Comply with all other reasonable conditions

Question 14

Breach of CSO – 742.6

Answer 14

• Hearing within 30 days – s. 742.6(3)
• Reverse onus for release – 742.6(2)
• Standard = balance of probabilities
• If breach – s. 742.6(9):

Take no action
Change optional conditions
Serve in custody for portion of sentence then resume
Terminate and collapse into real jail

• Running of sentence suspended until finding of breach and earliest of:
  Issuance of warrant
  Arrest without warrant
  Compelled appearance

Question 15

Intermittent Sentence – s. 732

Answer 15

• Sentence of 90 days or less:
  o Serve intermittently
  o Abide by probation conditions while on release

NB: Calculated AFTER PSC

Question 16

Pre-Sentence Custody

Answer 16

• general rule = PSC to be 1:1 – s. 719(3)
• exception: PSC can go to 1.5:1 “if circumstances justify it” – s. 719(3.1)
• enhanced cannot be awarded if:
• Denied bail primarily because of previous conviction and bail judge endorsed record as such – s. 515(9.1)
• Detained in reason of bail revocation – s. 719(3.1)
• previous reason for 2:1 credit no longer reason for enhance credit, i.e. lack of earned remission, parole and statutory release, lack of programming, etc.

Question 17

Victim Impact Statement – s. 722

Answer 17

• Must be:
  o Prepared in writing
  o Filed with the court
• Permitted for V to read statement
• Court shall consider statement
• Court shall inquire, after finding of guilt, if there’s a VIS – s.722.2
• Court can adjourn for VIS, if not interfere with proper admin of justice – s. 722.2(2)
• To be disclosed to D/C in a timely fashion

Question 18

R. v. Sharma

Answer 18

CSOs not available for indictment (14 years+) or import/export of drugs (10+ years).

Bill C-5 overrode this. CSOs for anything except:

A. Offences featuring a mandatory minimum sentence
B. Offences listed in s. 742.1(c) - torture, genocide, attempt murder (w/o firearm)
C. Terrorism or criminal organization offences, prosecuted by way of indictment, that feature a maximum sentence of 10 years or more.