Once either a judge or jury has found you guilty of an offence, the matter proceeds to criminal 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:
- Absolute Discharge
- Conditional Discharge
- Curative Discharge
- Fine Order
- Suspended Sentence and Probation
- Conditional Sentence Order (a.k.a. house arrest)
- Intermittent Jail Sentence (a.k.a. weekend jail)
- Straight Jail Time
Planning Your Criminal 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 behaviour. 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.