By: William Jaksa Criminal Litigation December 2, 2019

CRIMINAL SENTENCING CONSIDERATIONS FOR JUDGES

FAIR, CONSISTENT, & PROPORTIONAL SENTENCING

Upon a conviction, the Judge must follow some strict guidelines in their sentencing. These are in place to ensure that all sentences are fair, consistent, and proportional to the crime.

The Criminal Code purposes principles that provide judges with both considerations and guidance in sentencing. However, it does not provide absolutes. The Criminal Code recognizes that each offence has its own specific circumstances and each trial and accused has its own specific considerations.

A sentencing Judge is tasked with finding a just and appropriate punishment. They must strike a balance between the codified objectives of sentencing principles and common law sentencing precedents. In addition to this balance, they also need to satisfy a proper fit and sentence for specific circumstances and the circumstances of the accused.

To do so, they consider several principles:

Proportionality: The sentence must proportional to the crime, and the offenders’ degree of responsibility – s. 718.1
Totality: A component of proportionality, it ensures the sentence is proportional to the gravity of the offence – s. 718.2(c)
Parity: The sentence should be similar to other sentences that involve similar offences and circumstances – s. 718.2(b)
Restraint: The Judge must exercise restraint to ensure sentences are just and fair, carried out in a manner that is both appropriate and humane – s. 718(d), (e)

Although the Judge has some discretion, they are also bound by mandatory sentencing restrictions.

Criminal Sentencing Considerations

Sentencing Principles

If you’re facing criminal charges, the best option is to consult with a criminal defence lawyer. They will help you understand your options, importation sentencing considerations and the possible outcomes of pursuing them.

In this guide, we provide some key points that judges consider to determine a sentence.

MANDATORY MINIMUM & MAXIMUM SENTENCES

Upon a conviction, the Judge must follow some strict guidelines in their sentencing. These are in place to ensure that all sentences are fair, consistent, and proportional to the crime.

The Criminal Code has purposes and principles that provide judges with guidance in sentencing. However, it does not provide absolutes. The Criminal Code recognizes that each offence has its own specific circumstances and each trial and accused has its own specific considerations.

To do so, they consider several principles:

Proportionality: The sentence must proportional to the crime, and the offenders’ degree of responsibility – s. 718.1
Totality: A component of proportionality, it ensures the sentence is proportional to the gravity of the offence – s. 718.2(c)
Parity: The sentence should be similar to other sentences that involve similar offences and circumstances – s. 718.2(b)
Restraint: The Judge must exercise restraint to ensure sentences are just and fair, carried out in a manner that is both appropriate and humane – s. 718(d), (e)

Although the Judge has some discretion, they are also bound by mandatory sentencing restrictions.

MITIGATING CIRCUMSTANCES

Mitigating circumstances are a set of factors that can lessen the severity of a sentence. They do not justify or excuse criminal action, but they can result in lesser sentences or reduced charges. The Judge can consider several mitigating circumstances:

Young Offenders

The age of the accused can be a significant mitigating factor. Young offenders have special rights and privileges and Judges have a much wider range of sentencing options. The Youth Criminal Justice Act governs youth justice in Canada, applying to anyone between the ages of 12-18.

The Courts tend to use the wider range of sentencing options to avoid incarceration for young offenders where possible. If jail time is given, sentences are generally shorter with better options for parole.

No one under the age of 12 can be charged with a criminal offence. Youth under 12 are not arrested and do not attend court. Instead, they are enrolled in child welfare and mental health programs

First Time Offender / No Criminal History

First-time offenders are generally treated with more leniency in the Courts. However, this is dependent on the severity and nature of the charges. A first-time offender with no criminal history and facing charges for a non-violent crime is less likely to go to jail.

However, a first-time offender may go to jail for more severe or violent crimes. As well, there are some crimes with automatic jail-time in Canada, regardless of criminal history.

Not Principal Actor But Party to the Offence

Where the defendant is Not Principal actor but Party to the offence, or simply Accessory to the Crime, they may face less severe sentencing. All parties involved in an offence are equally culpable. However, they may not all face the same sentencing.

The intent, level and type of involvement can affect the severity of sentencing. There are four types of ways for a person to be criminally liable for an act:

Principal: The actor(s) who commit the act.
Aider: Assists or helps the principal in the offence.
Abettor: Encourages or instigates the commission of the offence.
Common Intention to Commit an Offence: Holds members of a group responsible for the actions of other members of the group. If a second group joins in an offence being committed by a first group, the two groups share a common intention.

Under Significant Personal or Financial Stress

Judges may take into account whether the defendant was under significant personal or financial stress at the time of the offence. Extreme stress does not remove the culpability of the defendant, but it can support more lenient sentencing.

Non-Violent Crime

A non-violent crime committed in a way that presented little or no risk to others. Potential for rehabilitation and the perceived threat to the community are significant considerations during sentencing. Non-violence offences that minimize risk to others are seen more favourably in this light.

AGGRAVATING CIRCUMSTANCES

Aggravating circumstances are the reverse of mitigating circumstances. They are a set of factors that increase the severity of a sentence. The Judge can consider several aggravating circumstances:

Previous Criminal Record

Having a criminal record often leads to more severe sentencing, especially for the same charges. It creates a greater perceived risk to the public and suggests less opportunity for rehabilitation. People with a criminal record appear to the Court as having a higher likelihood to re-offend.

Increasing the severity of punishment is just one of the ways a criminal record can affect your future. A record can make it more difficult to find a job, limit the ability to travel, and results in the loss of some personal freedoms. If you are facing criminal charges, it’s important to seek legal counsel from a defence lawyer.

Violence or Disregard for the Safety of Others

Violent crimes or the use/threat of violence in the commission of an offence are significant aggravating factors. These acts suggest a serious risk to the public and can add years to a prison sentence.

In a similar vein, disregard for the safety of others during the commission of an offence creates a greater risk to the public. Even if no one was hurt, reckless actions or actions that put others at risk of harm can increase the severity of a sentence.

Planned or Pre-Meditated

A planned or pre-meditated crime is treated more severely. It shows greater intent and foresight. For instance, first and second-degree murder charges are both instances where the act was committed with the intent to kill.

The difference is that first-degree murder is planned and deliberate. And even though both carry the maximum sentence of life imprisonment, second-degree murder may be eligible for parole after 10 years. Whereas the minimum time before parole eligibility for first-degree is 25 years.

Use of a Weapon

Carrying, using, or threatening to use a weapon in the commission of a crime will result in harsher sentencing. Even an imitation weapon may result in greater punishment. The use of a weapon upgrades the severity of a charge and may have its own charges.

For instance, in an assault charge carrying a weapon during the commission of an offence can raise the charge from simple assault to assault with a weapon. Even if you did not use the weapon.

Simple, or common, assault is the most basic form of assault and may not require a jury or a jail sentence. Assault with a weapon, however, is much more serious and can result in up to 10 years imprisonment.

Cruelty or Malice

Committing an offence with cruelty or malice is another aggravating factor. The definition of cruelty and/or malice is not set in stone but typically involves committing a wrongful action deliberately and without provocation.

Death or injury is common in crimes involving cruelty or malice. Words, plans, or deadly weapons used can serve as evidence of malice.

Specific Statutory Features

Some aggravating factors have specific statutory features, which guide in criminal sentencing considerations of specific circumstances:

Impaired Driving Offences: Ontario has some of the toughest impaired driving policies in the country. Although the legal limit is 0.08% blood alcohol content, a higher level can mean stricter sentencing. People who register readings over double the legal limit can face additional sentencing and may require an abuse risk analysis and assessment.
Assaults: Assaults fall into several different categories according to aggravating factors. Domestic assault is treated especially severely, as Toronto has a zero-tolerance policy for domestic violence. Counselling may be required in addition to the jail sentence.
Age of the Victim: The age of a victim can leave them more vulnerable. Crimes against minors receive especially severe sentencing, as well as against the elderly. In addition to the heinous nature of targeting the vulnerable, there is typically a higher amount of public pressure for harsher punishment.
Assault Against a Transit Worker: Assault against a public transit worker occurs where the victim of the offence was, at the time of the offence a public transit operator engaged in their duty.

OTHER CONSIDERATIONS

As is evident, judges have a lot to consider when sentencing a criminal offence. In addition to the above categories, there remain several other considerations. We explore a few:

Mental Health Considerations:

Mental health can be taken into account resulting in alternative sentencing or more lenient sentencing. Attending counselling or some form of care may be required.

Where a person is unable to appreciate the nature or quality of the crime they may be found not criminally responsible (NCR). NCRs are rare and can occur any time before the conviction is imposed.

Remorse

Showing remorse for a crime is typically viewed favourably. This can be shown through actions, apologies, and restitution. In some instances, a defendant can avoid a conviction by paying restitution.

Prospects for Rehabilitation

Prospects for rehabilitation is a major factor in criminal sentencing considerations. The greater the prospects for rehabilitation the less likely the Judge will pursue tough sentencing. Where possible, it is preferable to provide a sentence geared towards rehabilitation, not punishment.

Where the prospect is strong, alternative sentencing options have a greater chance of being used. They are especially common in sentencing young offenders.

Addiction

An addiction, in particular drugs and/or alcohol, should be taken into account in sentencing. The Court often looks favourably upon voluntarily entering into rehab or addiction counselling programs. As well, sentencing may involve enrollment in such programs.

Lesser Charges

Less severe charges make greater use of alternative sentencing. Where the risk and damage to the public are low and prospects of rehabilitation are good, incarceration is a poor option. Instead, alternatives such as restitution, probation, diversion, or community service may be considered.

COULD YOU FACE JAIL TIME: DISCOVER YOUR OPTIONS & POTENTIAL OUTCOMES

Are you or a loved one facing criminal charges in Toronto? Need to understand the criminal sentencing considerations? William Jaksa is an experienced and trusted criminal defence lawyer. He will help you understand the charges against you, your options, and the potential outcomes.

Contact William Jaksa for a legal consultation.