Sentence

Once either a judge or jury has found you guilty of an offence, the matter proceeds to sentencing.  During the sentencing process, the judge hears from the Crown prosecutor and the defence lawyer as to what the appropriate sentence should be, and why.

In assessing the positions put forward by Crown and Defence, the Judge must keep in mind all the principles of sentencing set out in the Criminal Code, as well as any minimum or maximum sentence set out in the Criminal Code for any particular offence.  A good place to start before any sentencing, therefore, is the Criminal Code.

Range of Sentence

Generally speaking, the range of sentence from most lenient to most onerous is as follows:

  1. Absolute Discharge
  2. Conditional Discharge
  3. Curative Discharge
  4. Fine Order
  5. Suspended Sentence and Probation
  6. Conditional Sentence Order (a.k.a. house arrest)
  7. Intermittent Jail Time (a.k.a. weekend jail)
  8. Straight Jail Time

Discharge | Conditional | Absolute

A Discharge of any type is the best possible sentence you can receive short of a Resolution (discussed in a previous section).  A Discharge means that the Court has found you guilty of a criminal offence, but rather than entering a conviction against you, has chosen to show leniency and ‘discharge’ you, either conditionally or absolutely.

The difference between a conditional and absolute discharge is that unlike an absolute discharge, a conditional discharge requires a term of probation.  That is, in the case of a conditional discharge, the court will indicate that you will be discharged, but only after you fulfill the terms of either a one, two, or three year probationary period.  This probationary period will typically involve things like reporting to probation every two weeks, counseling, and community service.

Discharges are rarely granted.  In order to receive an Absolute or Conditional Discharge, there must be no minimum sentence specified in the Criminal Code.  Further, discharges typically apply to relatively low level offences, and typically require unique personal circumstances.  The list of unique circumstances that may be relevant is not exhaustive, but can include some of the following:

  • Risk of loss of employment if convicted
  • Risk of deportation if convicted
  • An indication that an underlying mental health concern contributed to the wrongful behavior
  • An indication that some sort of coercion or undue pressure caused the wrongful behavior

Curative discharges are applicable in impaired driving cases only, and have a very unique set of qualifying criteria.  In the most general of terms, to qualify for a Curative Discharge there must be:

  • A significant and ongoing history of alcohol dependence,
  • A significant alcohol dependence at the time of the offence,
  • A willingness to change, and
  • A likelihood of success

Typically expert evidence and formal medical diagnosis will be required, as well as a requirement that you personally testify to, among other things, the above mentioned issues.

Discharges

  1. What is a conditional discharge?
  2. What is an absolute discharge?
  3. What effect will a discharge have on my criminal record?
  4. What is a curative discharge?

Fine

A fine is imposed for offences of a relatively minor nature, and where there is no prior criminal record, or at most a very minor one.  The maximum fine you can expect for summary conviction offences under the Criminal Code is $5000.  Typically, the fines range from $150 for very minor violations to $2000 for the most severe ones that still fit within a fine range.  A 15% Victim Fine Surcharge is applied to fines imposed by the judge unless you can convince the judge it would be an excessive financial hardship.  You can expect that the judge will give a reasonable amount of time to pay the fine, anywhere from 1 month to 1 year.

Should you fail to pay a fine, however, you are subject to arrest and will have to serve a jail sentence proportional to the amount of the fine still outstanding at the time of arrest.  You will be told how much time that is at the time of sentencing.  You will also be told that you can work off the fine through the “Fine Options Program”.

Suspended Sentence

In order to qualify for a Suspended Sentence, the judge must be satisfied that, among other things, you are a suitable candidate for community supervision.  This determination will likely be based on information about your past, present, and future.  The probationary term may be as short at 6 months, or as long as 3 years.  The typical length of probation is 12 to 24 months.  The terms of the probation order may include reporting to a probation officer (typically every two weeks), attending for counseling of some sort, repaying any damage incurred as a result of the offence, abstention from drugs or alcohol, maintaining schooling or employment, and anything else the court thinks appropriate.

Failure to follow the terms of probation is its own separate criminal offence, so it is very important to carefully negotiate all the terms of probation, and alert the court if there are terms that you are not able to follow.  Some examples include requesting that reporting can be done by telephone when working out of town, or requesting that the condition of having no weapons have an exception for work tools.  The judge will be able to craft the probation order to address your concerns, but they must be raised before they can be remedied.

Conditional Sentence Order (CSO)

A Conditional Sentence Order is a Jail Sentence – but it is a Jail Sentence that the judge allows to be served in the community.  There are several pre-conditions to receiving such a sentence:

  • There must be no minimum sentence;
  • The appropriate sentence for the offence must not be two years or more;
  • The offence must not be one specifically disqualified from receiving a CSO in the Criminal Code;
  • The offence must not be one classified as a “serious personal injury offence”; and
  • There must not be a danger of re-offending if a CSO is imposed

A Conditional Sentence is a sentence of last hope before a significant actual jail is imposed.  The maximum time that can be imposed under a CSO is 24 months.  However, the conditions are much more onerous that those imposed pursuant to a suspended sentence.  You can expect to be on 24h house arrest.  That means you will be required to stay in your home at all times, with some exceptions.  The typical exceptions are work, school, religious services, medical and professional appointments, reporting to probation, and shopping for necessities.

Perhaps the most significant difference between a Probation Order and a CSO is that if you breach a CSO, the judge will first and foremost consider sending you to actual jail for the remainder of term of the CSO.  For example, if you receive a two year CSO, and breach your conditions 6 months into the Order, once the breach is proven, the judge can immediately send you to jail for the remaining 18 months left to serve on the Order.  The judge reviewing the breach has a range of other available options, so it’s important to review each of them to see if any other alternative will suffice.

Intermittent Jail (Weekend Jail)

If the jail sentence is 90 days or less, the judge has the discretion to allow you to serve is intermittently.  This means that you can go to jail on weekends, and still be able to go to work and/or take care of the kids during the week until the sentence is served.  For example, if you go into custody on Friday at 7pm, and are released on Monday at 7am, you will get the benefit of 4 days custody.  At this rate, even a 90 day jail sentence can be completed relatively quickly, and with minimal intrusion into your ability to earn a living.

Straight Jail

Actual Jail is a sentence of last resort.  When no other sentence is appropriate, either because of the nature of the offence, or because of your particular circumstances, a jail sentence will be imposed.  A Jail sentence will be served in either a Provincial Jail if there is less than two years left to serve on the day of sentence, or in a Federal Penitentiary for any sentence of two years or more.

The current system allows for automatic parole after two thirds of the sentence is served.  That means that if a 1 year jail sentence is imposed, you will almost automatically be released after completing 8 months.  Both the provincial and federal systems have early parole options, although the federal early release system seems more robust.

If straight jail is imposed on the day of sentence, there will be no opportunity to say your goodbyes or walk the dog.  Make sure you have all your affairs in order before proceeding to sentence because once a jail sentence is pronounced, there is no going home until the sentence is served.

Planning Your Sentencing

Whether pleading guilty or being found guilty after trial, there is no reason to proceed to sentencing on the same day.  Unless the offence is relatively simple and the sentence you want is agreed to by the Crown prosecutor, it is quite common to adjourn the sentencing for two to three months to gather the information relevant to sentencing.  There is no exhaustive list of things you should prepare, but you should advise your lawyer of whatever you think is relevant.  Some of the things you should think of gathering are as follows:

  • Your employment record
  • Any volunteer and/or community involvement record
  • If in school, records of grades
  • Reference letters from employer, family, friends, etc.
  • Apology letter, if applicable
  • Record of counseling, if applicable
  • Record of repayment of damages, if applicable
  • Driving abstract, if applicable
  • Medical/mental health records

Whenever a jail sentence is a realistic possibility, it is quite common to order a “pre-sentence report” or a “forensic report”.

A pre-sentence report is a report about you, prepared by a probation officer.  The main purpose of the report is to advise the court if you are a suitable candidate for community supervision.  The typical procedure is to order the report, then set up an appointment with probation to interview you.  You will be expected to describe your childhood, your upbringing, your education and financial history, your emotional and social adjustment, etc.  The probation officer will ask you for contact information for your family and friends, as well as other supporting documents to corroborate the information you provide.

A Forensic Report is also report about you, but is one prepared by either a psychologist of psychiatrist at the hospital.  The report is typically ordered when an underlying psychological or psychiatric condition is believed to affect you, and may have contributed to the offending behavior.  After the report is ordered, you will be contacted to set up an appointment for the preparation of the report.  The doctors doing the report will likely ask you much of the same information that forms part of the pre-sentence report, but you may further be expected to discuss the offence itself, as well as do some psychological tests.

The reports typically take 2 to 3 months to prepare, and that is why sentencing is usually adjourned for that length of time so the reports can be ready.  It is always important to review the report in detail to make sure it is accurate, and to be able to address any concerns raised in the report.

Structuring Your Sentencing Submissions

There is no magic to presenting sentencing submissions, but there is significant skill involved.  It is important to present all of the relevant information the judge may require in coming to the best sentence possible for you.  It is equally important to make sure the judge can follow the flow of your submissions.

Sometimes the simplest way of ensuring you say everything you want to say is to write it all down and read it to the court.

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Michael answered his phone at 10 o’clock at night and he and his associate helped us navigate the intimidating criminal justice system over the next 72 hours. They were available to us 24/7, clearly explained our options at each step and answered all of our questions promptly. It felt like having a guardian angel watching over us. If you have a criminal matter that you need assistance with, this is the man you need to contact.

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I was charged with assault for a minor scuffle. I knew I was in good hands with Michael’s solid legal advice and preparation for my pending case. Because of his knowledge, advice and legal expertise, all charges were dropped. Michael and his team take pride in providing not only the right result, but quality customer service along the way. I heartily recommend Michael Oykhman to anyone seeking legal counsel!

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Disclaimer: All results of cases handled by the lawyer/firm are not provided. The results provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.

Successful Case Results

Break and Enter, Theft Under $5000, Possession of Break-In Instruments, Possession of a Weapon for a Dangerous Purpose, Charges Withdrawn

Airdrie Provincial Court
Case Number: 23500891

Our client was facing a number of serious criminal charges after it was alleged that he had broken into a home and had stolen a number of items.

Upon being retained we immediately sought disclosure, including a fingerprint analysis. We determined that the identification of our client as the accused could not be proven beyond a reasonable doubt.

We negotiated with the Crown and they withdrew all of the charges.

Successful Result: Charges Withdrawn

Domestic Assault, Charge Withdrawn

Airdrie Provincial Court
Case Number: 7620521

Our client was charged with assault against his ex-wife. He was also served with an Emergency Protection Order (EPO) that contained several serious allegations.

Once we were retained we immediately sought disclosure and began resolution discussions with the Crown. We found several extreme discrepancies between the allegations in the EPO and what the complainant told police. We used this to challenge the complainant’s credibility, and the assault charge was withdrawn weeks after our client’s first court appearance.

Successful Result: No Criminal Record, Charge Withdrawn

Impaired Driving and Over .08, Charges Withdrawn

Calgary Provincial Court
Case Number: 7519721

Our client drove through a checkstop, indicated he had some drinks that evening, and was noted to have glassy mirrored eyes and a smell of alcohol on his breath.  He failed the roadside breath test, blew .140 on the evidentiary instrument, and was charged with impaired driving and driving over .08.

Once we were retained, we set the matter for trial and filed a motion alleging a violation of our client’s Constitutional rights under the Canadian Charter of Rights and Freedoms.  Days before trial, we successfully negotiated the withdrawal of all charges.

Successful Result: No Criminal Record, Charges Withdrawn
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Disclaimer: All results of cases handled by the lawyer/firm are not provided. The results provided are not necessarily representative of results obtained by the lawyer/firm or of the experience of all clients or others with the lawyer/firm. Every case is different, and each client’s case must be evaluated and handled on its own merits.