Sentencing takes place in a court following a guilty plea or a finding of guilt by the judge or the jury. Sentencing may take place immediately after the plea or finding of guilt or can be delayed pending preparation of a pre-sentence report. A pre-sentence report is prepared by a probation officer at the request of the judge or on the suggestion of either lawyer. The report assists the judge to decide on the most appropriate sentence for the offender. The probation officer looks at the offender’s background, previous convictions, family life, work record, current employment, any treatment or counselling the offender is receiving, and the offender’s attitude towards the offence. The probation officer may talk to the offender, her immediate family, and/or the police.
Copies of the report should be provided by the clerk of the court to the accused or her lawyer, to the judge and the prosecutor. If the defendant disputes the accuracy of the statements in the report, the Crown has the obligation to prove that they are true; otherwise the judge should not take them into account. While the report is being prepared, the judge may order that the offender remain free on bail or recognizance (promise to appear before the court on a specified day) or be held in custody.
Speaking to Sentence
Prior to passing sentence, the judge gives the accused, her lawyer, and the prosecutor an opportunity to speak to sentence. The defence should provide information on the accused’s background, employment, education, dependents, and any other information that the judge should consider before deciding on the appropriate sentence. The prosecutor provides information on the accused’s criminal record (if any) and on the circumstances surrounding the offence, such as whether the accused was drunk. The defence may also wish to explain the circumstances.
Absolute and Conditional Discharges
A discharge means that the accused person pled or was found guilty but is deemed not to be convicted. A discharge can only be given if there is no minimum punishment for the offence and the maximum punishment is less than fourteen years imprisonment. The discharge must be in the best interests of the accused and must not be contrary to the public interest. A discharge can either be absolute, or can be subject to the conditions set out in a probation order. An accused who is granted a discharge is considered not to have been convicted of the offence. However, both the accused and the prosecution can still appeal the decision. Although a discharge becomes part of the accused’s criminal record, the record of the discharge will be removed one year after an absolute discharge, and three years after a conditional discharge.
The court may place the offender on probation for a period of time or probation may be added to any of the other sentencing alternatives. Probation allows the individual to serve her sentence in the community within certain conditions. All probation orders require the accused to keep the peace and be of good behavior, to report to the courts when required to do so, and to notify her probation officer if she changes her name, address, or employment.
Common additional conditions are the requirement to report to a probation officer, to refrain from the use of alcohol and drugs, to refrain from associating with certain individuals, or to perform community service. The longest period of probation is three years. Breach of probation can be treated either as an indictable offence or as a summary offence. The individual can be returned to court and given a further sentence on the original crime if she does not comply with the conditions of her probation.
Fines and Fine Option
In many cases, a fine is given as a penalty for committing an offence. The Criminal Code sets out the maximum fine that can be imposed for each offence, but the judge can decide on the actual fine amount. In Alberta, persons who do not have funds to pay a fine may be eligible to work in the community under the Fine Option plan. The Fine Option plan allows people to work their fines off in the community at the rate equal to the provincial minimum wage rate, which is presently $8.80 per hour, to be raised to $9.40 per hour on September 1, 2011. For example, for a $600.00 fine, the person would have to work about sixty-eight hours. There is no actual exchange of money with the offender; the minimum wage rate is a rate used to determine the number of hours the individual must work.
The Criminal Code indicates maximum and minimum sentences for a wide variety of offences. For example, robbery has a maximum sentence of life in prison while assault causing bodily harm has a maximum of ten years. All summary offences have a maximum sentence of six months in jail or a $5,000 fine or both. As well, the court may order that the sentences, if there are more than one, be served concurrently or consecutively.
Concurrent Sentences—All sentences begin on the same date and the total jail time is concluded when the longest of the concurrent sentences is complete. Related offences that occur the same day or week are usually sentenced concurrently. If the person is already serving a sentence, or if she is dealing with several charges at the same time, she is likely to get concurrent time.
Consecutive Sentences—These sentences are served one after the other and are usually as a result of totally separate offences. For example: If an offender is convicted of robbery and sentenced to three years, and on the same date is convicted of sexual assault and sentenced to two years, a total term of five years would be imposed if the sentences were consecutive and three years if concurrent.
Conditional Sentences—A conditional sentence avoids actual incarceration behind bars and allows criminals to serve their sentence in the community. There are three pre-requisites for a conditional sentence: (1) the sentence of imprisonment must not be more than two years less a day, (2) the offender must not be a danger to the public, and (3) the offence must be one for which no minimum sentence is required by the Criminal Code. If these three pre-requisites are met, the judge may consider a conditional sentence.
If the judge sentences someone to a term of two years in jail less a day, the sentence will be served in a provincial institution, while two years or more are served in federal penitentiaries.
Anyone who receives a sentence of two years less a day is considered a provincial inmate. The judge has a variety of options available when passing sentence.
Custody—The judge can sentence a person to custody, anywhere from one day to two years less a day.
Intermittent Sentence—This type of sentence allows the person to serve their time intermittently, often on weekends.
This usually takes place under special circumstances, as long as the offence was not a serious or violent offence. For example, an intermittent sentence would allow a single mother to keep her job and care for her children, while serving her sentence at the same time.
Fine—A judge can sentence a person by handing down a fine. The judge can also sentence the accused to time in jail if the fine is not paid. The accused may end up serving some time in custody until the fine is paid.
Temporary Absences (TAs)—Provincial inmates are eligible for the temporary absence program after they have served one sixth of their sentence. Inmates would normally receive day TAs to begin with. This would enable the inmate to be in the community during the day, and return to the centre in the evening. All inmates who are in the community have to have TA status. TAs allow offenders to attend treatment centres, to attend school, or to maintain employment.
Parole—Provincial offenders are eligible for release (parole) once they have served two thirds of their sentence, as long as they are of good behaviour and obey the institution rules. Parole is a form of conditional release and the offender must obey certain conditions until her parole period is over.
Temporary Absences (TAs)—There are two types of TAs; escorted TAs (ETAs) and unescorted TAs (UTAs). Offenders can apply for ETAs at any time during their sentence. If an offender is serving a sentence of three years or more, she may apply for a UTA after she has served one sixth of her sentence. If she is serving a sentence of two to three years, she may apply for a UTA after she has served six months. Offenders serving life sentences are eligible to apply for UTAs three years before their full parole eligibility date. UTAs may be granted to allow the inmate to apply for a job, attend an interview with a prospective landlord, and attend family functions or simply to visit with family or friends.
Day Parole—When granted day parole, inmates are permitted to participate in community-based activities during the daytime but must return to an institution or half-way house every night, unless otherwise authorized by the Parole Board. Inmates are usually eligible for day parole six months prior to their full parole eligibility. However, if an offender is serving a sentence of two to three years, she may apply for day parole after serving six months of her sentence. Day parole will be granted only when the Parole Board considers that it will aid the inmate’s reform and rehabilitation without posing a risk to society. The Parole Board will set the conditions that the inmate must follow while on day parole.
Full Parole—Full parole allows the inmate to remain at large until the end of sentence, unless the release has been suspended, terminated, or revoked. An offender who is released on full parole must report to a parole supervisor on a regular basis and must inform her supervisor if her personal circumstances change: for example, if she changes jobs.
An inmate is generally eligible for full parole after serving one third of her sentence. Full parole is usually granted to those who do not constitute a risk to the public, who have benefited from imprisonment, and whose reform and rehabilitation will be aided by granting full parole.
Statutory Release—Offenders are usually entitled to be released from imprisonment after they have served two thirds of their sentence. However, the Parole Board of Canada has the authority to detain the offender until she has served her full sentence, or to place conditions on her release. This will occur if it is believed that the offender is likely to:
- commit another offence that will cause death or serious harm to another person;
- commit a sexual offence involving a child;
- commit a serious drug offence before the end of her sentence.
If an offender breaches the conditions of her release, commits a crime while on release, or becomes a risk to the public, the Board has the authority to revoke her release and detain her until the end of her sentence.