When an accused person is convicted at trial, or pleads guilty, the Court then determines what they deem to be a fair sentence based on a number of factors. According the Criminal Code of Canada, the purposes of sentencing are:
- Denunciation
- Deterrence
- Separation of offenders
- Rehabilitation
- Reparation
- Promotion of responsibility
When the Court is deciding the appropriate sentence, they will consider a number of principles including, but not limited to, proportionality, aggravating and mitigating factors, if the sentence would be unduly long or harsh, and if less restrictive sanctions would be appropriate.
Aggravating and Mitigating Factors
These are the factors that are taken into account which may increase or decrease a sentencing. An aggravating factor is a factor in an offence which may warrant a higher sentence, such as an extensive or related criminal record or a very high blood alcohol concentration in an impaired driving conviction. Alternatively, a mitigating factor is the opposite, a factor which may warrant a lesser sentence, such as if the person being sentenced has taken part in counselling or therapy since the offence.
Absolute and Conditional Discharges
The Criminal Code of Canada allows the Court to grant an offender a discharge rather than entering a conviction. While there is still a finding of guilt, the criminal record will not show a conviction, instead it will show a discharge. If granted a discharge, the offender can honestly answer that they have never been convicted of an offence.
Only certain offences are eligible for a discharge, and in practice, discharges are mostly restricted to relatively minor offences where the person being charged has no prior criminal record.
Conditional Discharge
A conditional discharge is what it sounds like, a discharge which will be granted conditionally, requiring the completion of a period of probation first. Upon successful completion of the terms of probation, any record of receiving a conditional discharge will be removed from the criminal record three years from the day of sentencing.
The test the Court will consider for whether a conditional discharge should be granted considers a number of factors, including if it is in the best interest of the accused and whether it is contrary to public interest.
Absolute Discharge
An absolute discharge does not involve any term of probation. Instead, it will be removed from the person’s criminal record after one year. These types of discharges are relatively rare.
Suspended Sentence (Probation)
A suspended sentence refers to the release of the person on probation for a specified length of time (thus suspending sentencing). Any violation of the probation order may result in additional charges (specifically breach of probation). During this time, the person will be out of custody but will be under the supervision of a probation officer. Unlike a discharge, a suspended sentence will result in a permanent entry on the convicted person’s criminal record.
Fine
If ordered to pay a fine, the convicted person must pay that set amount of money to the Court. While failure to pay the fine may lead to civil litigation (meaning the Court may sue), counsel can request that there is time to pay the fine. There is also the option to pay monetary fines through the Fine Options Program which requires completion of community service hours.
Conditional Sentence Order (CSO)
A conditional sentence order is a type of custodial sentence that is an alternative to a sentence of incarceration. A CSO often takes the form of “house arrest” and may be combined with our conditions. CSO’s are only available if the alternative is serving a period of incarceration that is less than two years.
Imprisonment
Incarceration is always at least a minor possible for offences found in the Criminal Code and even some regulatory offences. You may have also seen this referred to as “gaol”, the Latin spelling of jail.
If sentenced to under two years of imprisonment, the sentence will be served in a provincial correctional institution. Otherwise, sentences over two years are usually served in a federal penitentiary.
If a person is sentenced to a period of 90 days or less, they may apply to serve their sentence intermittently. This often means that the person is serving their sentence on weekends so that they may maintain gainful employment during the week.