When a person charged with an offence pleads guilty or is found guilty, he or she receives a sentence. While the most well-known penalty is imprisonment, there are several other types of penalties. What are the different types of criminal law sentencing, what are they and in what cases are they available?
Basic Principles of Sentencing
Sentencing an offender is not entirely within the discretion of the judge. Indeed, the judge’s freedom to choose the sentence is, to some extent, restricted by law and jurisprudence. For example, the Criminal Code has mandatory minimum sentences . Thus, for certain crimes, the law imposes a minimum severity, below which the judge is not entitled to go. For firearms trafficking, for example, the minimum sentence for a first offence is three years’ imprisonment. The Criminal Code also has maximum penalties.
In addition to being constrained by the existence of minimum and maximum sentences, judges must also follow certain sentencing principles. As set out in section 718.1 of the Criminal Code, the fundamental principle is proportionality, which means that any sentence must be appropriate to the seriousness of the crime and the degree of responsibility of the offender.
Judges must also respect the other principles listed in section 718.2 of the Criminal Code, such as taking into account aggravating and mitigating circumstances, the requirement to consider the imposition of a non-custodial sanction and the review, particularly with respect to Aboriginal offenders, of all sanctions being held in lieu of custody that are reasonable in the circumstances.
Thus, if there are several types of penalties, not all of them will be available in a given case. This will vary depending on the offence involved, the offender’s history, the particulars of the offence and the offender’s individual circumstances.
Imprisonment
The well-known prison sentence is considered the most severe penalty. The length of imprisonment can vary from a few days to life, depending on the seriousness of the offence and the circumstances of the case. Imprisonment can be imposed for serious crimes, such as murder, sexual assault, fraud or drug trafficking.
When a person receives a sentence of less than two years, they will serve it in a provincial or territorial prison. A person who is sentenced to two years or more in prison will be sent to a federal penitentiary.
Where a person is sentenced to imprisonment for 90 days or less, the Court may, pursuant to section 732(1) of the Criminal Code, order that the sentence be served intermittently. This means that the person serves part of their sentence in prison, for example, on weekends, and the rest in the community, where they are subject to a probation order. This type of sentence has the advantage of reducing the length of time spent in prison and making it easier for offenders to keep a job.
Conditional sentence
Conditional sentencing allows the offender to serve his or her sentence in the community. Thus, although the name contains the term “imprisonment”, the person who is subject to this type of sentence does not go to jail, but rather serves his sentence in the community, while being subject to strict conditions.
Pursuant to section 742.1 of the Criminal Code, conditional sentences are only available if the person has been sentenced to less than two years’ imprisonment. The process works in this way: the judge determines the appropriate length of the custodial sentence and, if it is less than two years, considers whether the offender should be allowed to serve his sentence in the community. There are also other restrictions on the availability of this sentence. Conditional imprisonment is not available where a minimum sentence is provided for the offence in question or for certain specified offences, such as torture.
A conditional sentence comes with conditions, such as keeping the peace and reporting regularly to the supervisory officer. The court may also impose conditions such as abstaining from drugs or alcohol, observing a curfew, providing bodily samples, undergoing treatment or performing community service. Thus, although the offender remains in the community, his or her freedom is significantly restricted. The breach of a condition can result in a variety of responses from authorities, ranging from changing conditions to incarceration.
Probation
Probation is presented as non-punitive and focused on rehabilitation. Its purpose is to ensure the proper conduct of the offender. When an offender is sentenced to probation, he or she is required to comply with various conditions for a specified period of up to three years. Probation may be imposed alone or in addition to another penalty such as a conditional discharge or imprisonment.
Pursuant to section 731(1) of the Criminal Code, probation alone is only available when the offence does not carry a minimum sentence. In this case, when the court issues a probation order, it is said to be suspending the sentence, that is, it suspends the sentence and imposes probation instead. If a condition of probation is breached, the order may be revoked and the court may impose the sentence that would otherwise have been imposed. Probation may also be imposed in addition to a fine or imprisonment, provided that this does not exceed two years.
Although probation is intended to focus on rehabilitation, it may have several conditions that may have the effect of restricting liberty, such as a prohibition on communicating with certain persons or being in a certain area, a requirement to perform community service, and a prohibition on the use of alcohol or drugs. It is important to note that a breach of conditions may constitute a new criminal offence. Thus, behaviour that is not criminal in the first place, such as consuming alcohol, can be criminalized and have significant consequences.
Fine
A person may also be fined as the sole penalty or in addition to another penalty. In order to accommodate the financial situation of some offenders, courts in several provinces may impose community service on individuals who are unable to pay a fine.
In addition to fines, for which the money goes to the state, each person convicted of an offence must pay a victim surcharge. For each offence, the offender must pay an amount equivalent to 30% of the fine imposed, or $100 per summary offence and $200 per criminal offence. The money is allocated to services for victims of crime. The court may, however, exempt or reduce the amount of the offender in cases where the person has very limited financial resources and requiring the offender to pay would be a disproportionate sentence.
Community work
Community service may be imposed on the offender for a certain number of hours as part of probation. The consequences of this penalty are that it can have a positive effect on the person, allowing him or her to contribute to society while avoiding a harsher sentence.
Absolute or conditional discharge
When a person receives a discharge, they do not have a criminal conviction on their record. However, a discharge is not equivalent to an acquittal. The criminal record of a person who has obtained a discharge will not be entirely empty, since it will show the record of the discharge. However, the absolute discharge will cease to appear in the criminal record after one year and after three years for a conditional discharge. An absolute discharge, as the name suggests, is not subject to conditions. A conditional discharge, on the other hand, comes with a probation order, which may have several conditions.
Pursuant to section 730(1) of the Criminal Code, discharge may only be imposed in cases where the offence does not carry a mandatory minimum sentence, a maximum sentence of fourteen years or life imprisonment, and provided that the court considers that it is in the interest of the accused and is not likely to be prejudicial to the public interest.
Role of the lawyer
As explained above, several factors influence sentencing, such as the seriousness of the offence, the circumstances surrounding the offence, and the offender’s history.
To ensure that you assert your rights, do not hesitate to contact our lawyers specializing in criminal law. They will help you better understand the issues related to each type of sentence and obtain a sentence that is as appropriate as possible to your situation.