Suspended Sentence/Probation Probation is a sentencing option that may be imposed on its own by way of a sus- suspended sentence pended sentence or conditional discharge, or in combination with another penalty, suspension of a jail sen- such as a fine or a period of incarceration not exceeding two years. Section 731(1)(a) tence, in which the offender of the Criminal Code permits the sentencing judge to impose a suspended sentence is placed on probation with conditions as prescribed in the probation order when there is no minimum punishment attached to the offence. The factors that are taken into account by the court are the age and character of the offender, and the nature of and circumstances surrounding the commission of the offence. If a suspended sentence is imposed, it is a stand-alone order, meaning that no other penalty may be imposed for the offence. A suspended sentence may be for a period not exceeding three years, after which point the court has discretion to re-sentence the accused, since a suspended sentence is not a final order. Probation is viewed as a rehabilitative measure as opposed to a punitive measure. Section 732.1 refers to compulsory and optional conditions placed on a proba- tion order. The compulsory conditions include: keeping the peace and being of good behaviour; . appearing before the court when required to do so by the court; and . notifying the court or the probation officer in advance of any change of name or address, and promptly notifying the court or probation officer of any change of employment or occupation. The optional conditions of a probation order include: . reporting to a probation officer within a specified time period and in the manner directed by the probation officer; . remaining within the jurisdiction of the court unless written permission is obtained to leave the jurisdiction; . abstaining from the consumption of alcohol, non-prescription drugs, or other intoxicants; . abstaining from owning, possessing, or carrying a weapon; providing for the support or care of dependants; performing up to 240 hours of community service over an 18-month period; participating in a provincially approved treatment program (including the ignition interlock program and follow-up treatment as directed); and . complying with other reasonable conditions as the court deems desirable. The sentencing court is mandated to provide a copy of the probation order to the offender, explain the conditions of the order, explain the procedure for making changes to the optional conditions, and take reasonable steps to ensure that the offender under- stands the order. The probation order comes into effect on the date that it is made. Either the Crown or the offender may bring an application to vary the conditions on a probation order. A probation order may also be transferred to another jurisdic tion, such as when the offender moves to another province during the period ofFundamental Principle The fundamental principle of sentencing, according to section 718.1 of the Criminal Code, is that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender. In determining a proportionate sentence, the moral blameworthiness of the offender must be taken into account. A sentence must be individualized to the offender, even after parity is taken into account. Section 718.2 of the Criminal Code outlines other sentencing principles to be taken into account, including a list of aggravating factors. Section 718.2(b) makes reference to parity, stating specifically that similar sentences should be imposed on similar offenders for similar offences committed under similar circumstances. This section also makes reference to restraint, noting that less restrictive sanctions should be con- sidered before deprivation of liberty. Aggravating Factors aggravating factor Aggravating factors are factors that would increase the severity of the sentence for circumstance that may the offender. Aggravating factors specifically mentioned under section 718.2(a) increase the severity of include: the sentence imposed . evidence that the crime was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor; . evidence that the offender abused his or her spouse or common-law partner; evidence of abuse of a person under the age of 18 years; . evidence that the offender abused a position of trust or authority; . evidence of the impact of the crime on the victim, with consideration of the victim's age, health, and financial situation; . evidence of involvement with a criminal organization; or . evidence that the offence was a terrorism offence. Mitigating Factors mitigating factor Mitigating factors are factors that would reduce the severity of the sentence. Miti- circumstance that may gating factors are not specifically listed under the Criminal Code but may include: decrease the severity of the sentence imposed . an early guilty plea, saving the victim from having to go through a trial; remorse expressed by the offender; . the offender's involvement in counselling or treatment; lack of criminal record; . age of the offender; . background of the offender, especially with respect to any mental or physical disability or hardship that contributed to the offence; . formal apology made to the victim; . restitution paid to the victim prior to sentencing; and . the offender being gainfully employed.. keeping the peace and being of good behaviour; . appearing before the court when required to do so by the court; reporting to a supervisor within two working days or as directed by the court, and thereafter as required and in the manner directed by the supervisor; remaining within the jurisdiction of the court unless written permission is obtained to leave the jurisdiction from the court or the supervisor; and . notifying the court or the supervisor in advance of any change of name or address and promptly notifying the court or supervisor of any change of employment or occupation. Optional conditions on a conditional sentence order may include: . abstaining from the consumption of alcohol, non-prescription drugs, or other intoxicants; . abstaining from owning, possessing, or carrying a weapon; . providing for the support or care of dependants; performing up to 240 hours of community service over an 18-month period; participating in a provincially approved treatment program; and complying with reasonable conditions as directed by the court in order to secure the good conduct of the offender and to prevent a repetition of the same or other offences. The court must explain the conditions and the procedure to apply to vary the optional conditions. The supervisor may also propose changes to the conditional sentence order, with written notification given to the offender, the Crown, and the court. If the changes are not agreed to by all parties, a hearing must take place before the original sentencing judge. A conditional sentence order may be transferred to another province, but only with the consent of the attorney general of the transfer- ring province. If the offender breaches a term of the conditional sentence, a hearing must take place within 30 days of the arrest or as soon as practicable. A written report from the offender's conditional sentence supervisor, along with written and signed witness statements, may form the evidence at the hearing, although the offender is entitled to seek leave to cross-examine the supervisor and witnesses. If the offender is in custody on a new charge, the conditional sentence is suspended during the period of imprisonment for the new offence. For a breach of a conditional sentence order, the court has wide powers to take no action, change the optional conditions, suspend the conditional sentence and order the offender to serve a portion of the unexpired sentence in custody, or ter- minate the conditional sentence and order the offender to serve the remainder of the sentence in custody. Imprisonment Imprisonment is the most severe sanction that can be imposed on an offender in Canada. Sentences of imprisonment that are two years or longer are served at federalPurpose and Principles of Sentencing Fundamental Purpose and Objectives The fundamental purpose of sentencing is to promote respect for the law and the maintenance of a just, peaceful, and safe society, according to section 718 of the general deterrence Criminal Code. This purpose is achieved through one or more of the following six a sentencing principle objectives, as demonstrated in the figure below. aimed at discouraging the public from committing a similar offence Figure 9.1 specific deterrence a sentencing principle aimed at discouraging the particular offender Segregation from committing a To separate offenders similar offence from society, when necessary General and Responsibility segregation Specific Deterrence To promote a sense of a sentencing principle To deter the offender responsibility in offenders aimed at separating offend- and acknowledge harm and other persons from ers from society committing offences done to the victims and to the community responsibility SENTENCING a sentencing principle OBJECTIVES aimed at holding offend- ers accountable for their actions Reparation To provide reparations for Rehabilitation To assist in rehabilitation harm done to the victims or to the community rehabilitating offenders a sentencing principle aimed at reforming offend- Denunciation ers through treatment To denounce or programming unlawful conduct denunciation a sentencing principle that is aimed at condemn- ing or demonstrating disapproval of an offence committed or of the conduct of an offender Although all of these sentencing objectives are of equal importance, the sentenc ing judge may give more weight to some objectives over others, depending on the reparation circumstances of the case and of the offender. For certain categories of offences, a sentencing principle aimed at having offenders such as offences against children or peace officers, the Criminal Code mandates that make amends for harm the court give primary consideration to the objectives of deterrence and denuncia- or injury caused to a tion, pursuant to sections 718.01 and 718.02. victim or to society. for damage, loss, or destruction of property; for pecuniary damages, including loss of income or support, when there is bodily or psychological harm; . for basic expenses to the offender's spouse and/or children, when the offence involves bodily or psychological harm to the spouse or children; and . for costs to re-establish identification, credit history, and credit rating, when the offence involves identity theft. Unpaid restitution orders may be entered as civil judgments. Victim Surcharge A victim surcharge is payable in addition to any other punishment imposed on the offender, pursuant to section 737(1) of the Criminal Code. The surcharge amounts to 30 percent of any fine imposed on an offender, or if no fine is imposed, the sur- charge amounts to $100 for a summary conviction offence. However, the court may increase the victim surcharge when the court considers it to be appropriate under the circumstances and when the court is satisfied that the accused is able to pay the higher amount. If the offender is able to establish that he or she would suffer undue hardship from having to pay the victim surcharge, the judge may exempt the of- fender from having to pay it. As with fines, the amount of the victim surcharge must be specified, along with the manner of payment, the time to pay, and the procedure for applying for a change in the terms of payment. The fine option program does not apply to the victim surcharge. Conditional Sentences A conditional sentence is a sentence of imprisonment of two years or less that is conditional sentence served in the community. The offender must abide by conditions imposed by the jail sentence of no longer court for the duration of the sentence and is closely monitored by a supervisor. The than two years that is conditions are typically more restrictive than those in a probation order. For ex- served in the community ample, the offender may be bound by a condition that he or she shall not leave his or her residence without prior authorization from the supervisor-hence the com- monly known term "house arrest." A conditional sentence order is only handed out to offenders who do not pose a significant threat to the public. It is not available for offences for which there is a mandatory minimum period of incarceration or offences that are punishable by a maximum penalty of ten years or life imprisonment. As of November 2012, changes have been made to the Criminal Code to confine conditional sentences to less ser- ious offences. Specifically, conditional sentences are not available for offences in- volving bodily harm, drugs, weapons, or any offences punishable by a minimum term of imprisonment (which covers all types of sexual offences involving children), as well as other categories of offences prosecuted by way of indictment. As with probation orders, conditional sentence orders contain both compulsory conditions and optional conditions, pursuant to section 742.3 of the Criminal Code. Compulsory conditions include:In Gladue, the Supreme Court indicated that the guiding principles outlined were not meant to circumvent the traditional sentencing purposes and principles under the Criminal Code. The Gladue principle cannot be used to override a statu- torily mandated sentence, such as a minimum period of incarceration set out for a particular offence. Unless the court is faced with a serious violent offence, a Gladue offender is more likely to receive a reduced sentence. The Gladue principle is con- sidered by the sentencing court by ordering a pre-sentencing report, referred to as a "Gladue Report." The Supreme Court of Canada confirmed the Gladue principles in Ipeelee, noting that courts have been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. Types of Sentences In this section, we will look at the various types of sentencing options that may be imposed for a summary conviction matter, ranging from the least severe to the most severe. These sentencing options include absolute and conditional discharges, sus- pended sentences/probation, fines, restitution, conditional sentences, and imprisonment. Absolute and Conditional Discharge absolute discharge Absolute discharges and conditional discharges are described in section 730 of the when the accused is found Criminal Code. For any offences that do not include a minimum punishment, or are guilty of an offence but is not punishable by 14 years' imprisonment or by life imprisonment, the sentencing discharged without a pro- court may impose an absolute or conditional discharge if it is in the offender's best bation order or conditions, and no conviction results interests and not contrary to the public interest. A discharge is not equivalent to a conviction. Therefore, even though the offender has been found guilty of an offence conditional discharge or has entered a guilty plea to an offence, if he or she receives a discharge, no crim- when the accused is found inal conviction is entered on the record of the offender. guilty of an offence but is If the offender receives an absolute discharge, there are no conditions attached to discharged with conditions it. This means that the offender is not placed on probation and does not have to do placed on him or her, and no conviction results anything to satisfy any conditions. If a conditional discharge is imposed, the offender is bound by a probation order and conditions are attached to the discharge. The conditions that may be ordered by the court are similar to those placed on a probation order (see discussion on Sus- pended Sentence/Probation). During the period of the conditional discharge (which may be up to a period of two years), if the offender is convicted of another offence, the discharge may be revoked and the offender may be convicted and sentenced on the original offence. Once the duration of the conditional discharge has passed and the conditions have been followed successfully, the discharge becomes absolute. Even though a dis- charge is not a formal conviction, it does appear on a criminal record as a discharge. Typically, the court will only grant a discharge to an offender who is appearing before the court for the first time on an offence that is relatively minor in nature.penitentiaries, whereas sentences of two years less one day are served at provincial prisons. Since summary conviction matters are punishable by a maximum term of six months imprisonment, we will look at the different ways in which this jail term may be served. Section 732(1) permits the court to impose an intermittent sentence when the intermittent sentence sentence of imprisonment is for 90 days or less. An intermittent sentence requires sentence of incarceration the offender to serve the sentence during the dates and times specified in the order. of 90 days or less, to be An intermittent sentence may require the offender to report to the jail at 6 p.m. on served during days and a Friday night and serve the sentence until Monday morning at 6 a.m. for each times specified in the order weekend until the sentence is complete. During the time that the offender is not serving jail time, he or she is bound by a probation order. Factors that the court takes into account in determining whether or not to grant an intermittent sentence are the age and character of the offender, the nature and circumstances surrounding the commission of the offence, and the availability of accommodations to ensure that an intermittent sentence can be complied with. Typically, an intermittent sentence is granted to offenders who are employed and would lose their employment if they were to serve jail time on consecutive days. If the offender is a caregiver to family members, he or she may also be eligible for an intermittent sentence. Concurrent Versus Consecutive Sentences If an offender is being sentenced on two or more offences, the court may decide whether to impose a concurrent sentence or a consecutive sentence. A concurrent concurrent sentence sentence means that the offender is sentenced for two or more offences and serves sentence for two or more the sentences at the same time. separate offences that are served at the same time EXAMPLE consecutive sentence A Concurrent Sentence sentence for two or more separate offences that are Harry is a habitual shoplifter and has numerous convictions on his criminal record served one after the other for theft. Harry is being sentenced on one count of theft under $5,000 for shoplifting from a store and one count of mischief under $5,000 for scribbling graffiti on the store security officer's table after he was detained by the security officer. Harry re- ceives a sentence of three months' jail on the theft charge and one month jail on the mischief charge, to be served concurrently. Therefore, the total length of time that Harry will serve is three months' jail. A consecutive sentence means that the offender serves one sentence after the other one is complete. Using the above example, Harry would serve three months for the theft charge, then one month for the mischief charge, for a total of four months in jail. However, the totality principle, under section 718.2(c) of the Crim- inal Code, indicates that when consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. If two or more offences were commit- ted at the same time or were related, then the court may impose a concurrent sen- tence. On the other hand, if the offences were committed on separate occasions and are unrelated, the court may impose a consecutive sentence.probation. It should be noted that breaching a probation order is a hybrid offence under the Criminal Code. A template for a probation order is found in Form 46 of the Criminal Code and can be found in Appendix Q. Fines Section 734 of the Criminal Code outlines the power of the sentencing court to im- pose a fine in addition to any other sanction that may be imposed. For summary conviction offences, section 787(1) of the Criminal Code dictates that the maximum fine is $5,000. For indictable offences, there is no upper limit on the amount of the fine. A fine may be imposed on its own or as part of a probation order. Typically, the Crown prefers that the fine be imposed as part of a probation order so that it is easier to enforce if the fine is not paid. If the fine is attached to a probation order, then the offender faces a breach of probation charge if the fine is not paid. When an offender is fined, a term of imprisonment in default of the fine is calcu- lated. For a summary conviction offence, the term of imprisonment in default is no more than six months, for obvious reasons. However, before the court will impose a fine, it must inquire into the offender's ability to pay the fine, pursuant to section 734(2) of the Criminal Code. Section 734.1 provides that a fine order must set out: . the amount of the fine; the manner in which the fine is to be paid; . the time by which the total fine or a portion of it is to be paid; and . any other terms that the court deems to be appropriate. An offender is deemed to be in default of the fine when it has not been paid in full by the date specified in the order. A copy of the fine order must be provided to the offender with the payment conditions explained by the court, as well as an explana tion of the fine option program. Provision for a fine option program is set out under section 736(1) of the Crim- inal Code, which states that the offender may earn credits toward the fine for work performed in a program established by the provincial government. The program must determine the rate at which credits are earned. Examples of government pro- grams may include building habitats or other non-profit projects. If an offender is in default of the fine, section 734.5 of the Criminal Code permits the province to refuse to renew a licence or a permit if part of the proceeds of the fine are to be paid to the province. Non-payment of a fine is also enforceable as a judgment in any civil court with jurisdiction. Under section 734.7 of the Criminal Code, the court may also issue a warrant of committal for an offender who is in de- fault of payment. Restitution restitution For offences that cause a victim to suffer damages or loss, pursuant to section 738 of financial compensation for the Criminal Code, the court may order the offender to pay restitution, either upon injury or loss to a victim request by the Crown or on its own motion. Restitution may be ordered as follows