If someone pleads guilty to a criminal charge or is found guilty after a trial, there will be a “sentencing hearing”. A judge will hear submissions from both Crown and defence about what sentence is appropriate, consider the evidence and the law, and impose a sentence.
But judges cannot just impose any sentence they want – there is a very large body of law they must apply when deciding on sentence. Judges have discretion, but that discretion may only be used within the limits set by Parliament and interpreted by the Supreme Court of Canada and the BC Court of Appeal.
Those limits include principles and minimum and maximum sentences imposed by Canada’s Criminal Code, deductions for pre-trial custody, the offence for which sentence is imposed, appeal court decisions, and restrictions on information that can be considered.
Criminal Code principles
Our elected representatives in Parliament enacted Criminal Code provisions that judges must apply when sentencing. They include sentencing principles set out in Part XXIII of the Criminal Code requiring a judge to consider:
and to decide what sentence would best achieve the objectives of:
The Criminal Code also requires that a sentence be:
In addition, the Criminal Code says that:
Judges must balance all these factors – they cannot focus on one factor at the expense of the others.
Statutory minimums and maximums
The Criminal Code and other criminal laws provide for maximum sentences ranging from six months in jail to life imprisonment depending upon the nature of the offence.
For some charges (known as “hybrid” or “dual”) the Crown prosecutor chooses whether to proceed “by indictment” or “summarily”. The Crown’s choice affects the maximum sentence a judge may impose, since the Criminal Code provides higher penalties for indictable than for summary conviction offences. For example, when the Crown chooses to proceed summarily with an offence like car theft, the maximum jail sentence available is two years less a day, but it is 10 years if the Crown proceeds by indictment.
The Criminal Code also provides minimum sentences for some offences (for example, impaired driving).
Credit for pre-trial custody
Some offenders are denied bail and detained in jail before their trial, so they may spend a period of time in pre-trial custody. The Criminal Code requires judges to deduct that pre-trial custody from an appropriate sentence since it is time spent in jail as a result of the offence.
Sometimes a sentence is reported as “one day” reflecting the fact that the offender has fully served the appropriate jail time before conviction. A sentence phrased as “three months in jail with credit for six months” yields an effective sentence of nine months.
Although car theft may have been the original charge, sometimes an offender is found guilty of, or agrees with the prosecutor to plead guilty to, another less serious charge (perhaps mischief or taking an auto without consent) because of problems in proving the original charge or as part of a plea agreement between an accused person and the Crown.
Less serious charges often have lower sentence ranges, so the sentence will be less severe than it would have been for the original charge.
Appeal court decisions
Trial judges in BC must follow the sentencing decisions of the BC Court of Appeal and the Supreme Court of Canada on how to weigh the factors mandated by Parliament in the Criminal Code, and on appropriate ranges of sentence for particular offences.
When imposing sentence, judges are required to impose a sentence that is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This requires a judge to consider how other judges have sentenced other offenders for similar crimes, while also keeping in mind the unique circumstances of the offender before the court.
Similarly, a sentence that is below the range set by relevant cases could be appealed by the Crown and would likely be increased.
Judges’ sentencing decisions are also limited when lawyers make a “joint submission”. A “joint submission” is an agreement between the prosecutor and the accused person to recommend a particular sentence to the judge in exchange for the accused pleading guilty. The joint submission may be for a lower sentence than might otherwise be imposed.
The Supreme Court of Canada has set a stringent test for a judge who wishes to reject a joint submission. The Court said joint submissions are vitally important to the well being of the criminal justice system and a judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. “Trial judges should not reject a joint submission lightly. They should only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty.”
See R. v. Anthony Cook, 2016 SCC 43, for the law on joint submissions and the Court’s explanation of why joint submissions “benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally” and are “vitally important to the well being of the criminal justice system”.
Information that can be considered
A judge will consider all the admissible information presented in court during the sentencing hearing, including:
This information is usually presented in spoken submissions made by the Crown prosecutor and the defence lawyer, or by the offender if they do not have a lawyer. (When Legal Aid Duty Counsel are available they will often “speak to sentence” for an offender who doesn’t have a lawyer.) Sometimes reports, documents showing achievements, and letters of support are presented as evidence in a sentencing hearing.
If there was a trial the judge will also consider the facts proven in the trial – otherwise they will consider the facts alleged by the Crown and admitted by the offender. If the offender does not admit facts alleged in a sentencing hearing, the prosecutor must present evidence to prove them beyond a reasonable doubt or else they cannot be considered.
The judge may ask that a pre-sentence report be prepared. If so, a probation officer will interview the offender and attempt to interview people who know them well and any victims of the crime. The report will describe the offender’s background and attitude towards the offence. It may include options for sentence, particularly if there are specific programs that would help rehabilitate the offender. The judge decides whether or not to follow any suggestions in the report after hearing the Crown and defence submissions.
Victim Impact Statement
The judge will also consider a Victim Impact Statement which may be presented in writing or read out in court by the victim. Both individual victims and communities may prepare victim impact statements explaining the harm they have suffered from the crime.
However, a judge cannot consider information reported in the media or circulated on social media if it has not been introduced in the sentencing hearing. Because of this, people assessing a sentence after it is imposed may have information the judge did not have or was not permitted by the law to consider.
If people continue to commit criminal offences they often receive successively longer jail sentences, within the limits set by the Criminal Code and appeal court decisions. The Crown may also apply to have indefinite (“indeterminate”) sentences imposed on people convicted of serious personal injury offences, in certain circumstances. See Part XXIV of the Criminal Code.
Types of sentence
See Types of sentence
In many cases, judges take pains to provide detailed explanations of the reasons for their sentencing decisions. Some media are now including links to the judge’s reasons in their online reporting. If that is not provided, checking Recent Judgments or the CanLII database and reading those reasons will enable you to form an informed opinion about a judge’s decision.
A sentence that is considered too lenient may be appealed by the Crown (the prosecutor), who represents the public in the criminal court process, just as an accused person may appeal a conviction or sentence they disagree with.
For more on sentencing see:
Updated February 2020