When a defendant pleads guilty or is found guilty after a trial, their case proceeds to a sentencing hearing. At this hearing, the judge must decide what sentence to impose.
The judge's decision must be based on the principles of sentencing set out in the Criminal Code and in the case law. The fundamental principle is "proportionality" (that the sentence must be proportionate to the defendant and to the severity of the offence). To decide this question, the judge must take into account the aggravating and mitigating factors (other facts that tend to make the case more or less severe). Other important principles include the principle of "denunciation" (that we must condemn criminal behaviour on behalf of the community), the principle of "deterrence" (that we must stop the defendant and others from committing these offences), the principle of "rehabilitation" (that the sentence should help the defendant become a functioning member of society again), and the principle of "restraint" (that the least severe but reasonable sentence should be imposed).
The range of sentences that may be available depends in part on the limits placed in the Criminal Code and on the case law showing how similar defendants were sentenced for the same offences. All offences have a maximum sentence and some offences even have a minimum sentence. Canadian criminal law recognizes the following types of sentence.
(Sometimes, the judge may be able to combine two or more of these sentences.) In addition to these sentences, the court may impose special ancillary orders that limit a person's liberty, such as a prohibition on driving, the National Sex Offender Registry, a DNA databank order, or a weapons prohibition.
In some cases, the prosecution and defendant may agree on what the sentence should be. This is called a "joint submission." Judges are not required to follow joint submissions, but they can only reject a joint submission if the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. This means that judges will usually accept a joint submission, but defendants should be ready in case they are rejected.
Our lawyers thoroughly prepare for sentencing hearings. We negotiate favourable facts for guilty pleas, gather supporting documents, and bringing helpful caselaw. We have had great success in negotiating favourable joint submissions and in arguing for favourable results where the prosecution did not agree. We have even had sentences reduced as a result of violations of the Canadian Charter of Rights and Freedoms.
Contact the lawyer of your choice for a free consultation.
This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at firstname.lastname@example.org to propose any changes or updates.