The Criminal Process: Part 3

Stage 5: Sentencing

Sentencing is a separate court appearance, after the decision, where the judge hears submissions from Crown and Defence on their views of an appropriate sentence as well as any victim impact statements and reports that have been provided. 

When a judge determines a sentence, they consider several factors:

  • Criminal History: They look at the accused person's past involvement with the law.

  • Aggravating and Mitigating Circumstances: They examine the factors that make the offence more serious (aggravating) and those that make it less serious (mitigating).

  • The Severity of the Crime: The judge assesses how serious the offence is.

  • Harm Caused: They consider the harm caused to victims or the community.

  • Indigenous Offenders: If the accused is Indigenous, a Gladue report is prepared and presented. This report provides information about the offender's background and circumstances, helping the judge make a fair decision.

When a court decides on an adult's sentence, there are certain principles they must think about:

  • Similarity: The sentence should be similar to what's given to other offenders who committed similar offences in similar situations.

  • Less Restrictive Options: The court shouldn't take away a person's freedom if there's a less strict way to handle the case that's suitable for the circumstances.

  • Non-Imprisonment Options: Before choosing imprisonment, the court should think about all the other reasonable punishments that could work, especially paying attention to the situation of Indigenous offenders.

Types of Sentences

Suspended Sentence and Probation – This often includes a condition that you report to a Probation Officer as they direct. Other conditions might include:

• attending alcohol or drug assessment and/or treatment

• taking programs for anger management or domestic violence

• not using alcohol or drugs

• not contacting certain people or being at certain places

• any other conditions that are appropriate to the crime and your situation.

If they don’t follow the conditions the judge ordered, the prosecutor can apply to the Court to revoke the suspended sentence and impose a different sentence.

Fine – If the offender is given a fine, they will be given time to pay it. If it is not paid within that time, they could end up in custody or be unable to renew their driver’s licence.

Conditional Sentence – Media reports sometimes confuse this sentence with a conditional discharge. But a conditional sentence is a jail sentence served within the community under strict conditions. If the offender does not follow the conditions the judge ordered, they may end up serving the rest of the sentence in prison.

Custodial Sentence – This is where the offender serves a period of time in jail - either a provincial correctional centre or a federal penitentiary. For sentences of 90 days or less, a judge may order an intermittent sentence. This means they do not serve all the days of their sentence at the same time, but rather serve their sentence during, for example, weekends.

If an offender is sentenced to time in jail longer than 2 years less a day, they will serve their time in a federal penitentiary. A sentence of 2 years less a day is served in a provincial correctional facility. 

Victim Impact Statements

A Victim Impact Statement is a written statement of how a crime has affected you. The statement is your opportunity, as a victim, to tell the court and the person who committed the crime how the incident has impacted you and your family members’ lives. It is your opportunity to have your voice heard. A victim service worker can help you prepare a statement.

It is an opportunity for you to express how the crime has affected your life - physically, emotionally and financially. The statement should not suggest outcomes, such as sentencing the offender.

You are not required to complete a Victim Impact Statement, but if you do it will be presented during the sentencing hearing. You can decide whether you would like to read it in court or have it read for you. The judge can use your statement when considering how to sentence a person convicted of a crime.

Gladue Reports

A Gladue report is a written document that weaves together the offender's story with information from interviews with family, Elders, and community members. It can also include relevant documentation to support the judge in making an appropriate decision. The report describes their unique experiences as an Indigenous person. It includes:

  • The history and present-day story about the accused, their family, and their community/Nation their community and Nation's perspective on the situation, including relevant Indigenous laws and legal processes to consider.

  • Community-based options for their path forward grounded in healing or in supporting them in addressing challenges they might be facing.

Gladue principles are a way for the judge to consider the unique circumstances (experiences) of Indigenous peoples.