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Introduction
Sentencing (imposition of punishment) often follows immediately after conviction. There may, though, be a delay - either for the defence to prepare its arguments, or for a pre-sentence report by a probation officer.
Discharges
Even if a court finds you guilty of an offence, under some circumstances it might not convict you, but instead might give an absolute or conditional "discharge". This means there will be no punishment, and you will not have a criminal record as such (although the discharge itself is recorded).
The conditions that may be part of a conditional discharge can include things like the payment of restitution for damages, or counselling. The conditions will be imposed through a probation order. If these conditions are not kept, the discharge can be revoked, and a conviction entered after all.
A discharge is not possible if there is a minimum penalty for the offence, as with impaired driving, or if the maximum punishment for the offence is 14 years or more in jail.
To grant a discharge, the judge must be convinced it is in the best interests of the accused, and is not contrary to the public interest.
If a discharge is not granted, and a conviction entered instead, the sentence can be a money fine, a period of probation, a term of imprisonment, or a combination of these punishments. A fine will usually have a surcharge added on top of it, that is supposed to go into a fund for compensation of victims.
Probation
The judge may "suspend" sentence while you follow a programme of probation. If this is not properly completed, the suspended (more severe) sentence can then be imposed [s.738]. The terms that can be included in such a probation order are set out in the Criminal Code [s.737].
Restitution
There may also be an order for "restitution" - that is, you must make a payment to someone who has suffered loss because of your acts [s.725].
Punishments
The maximum punishment to which you can be sentenced for a summary offence is generally a fine up to $2,000, or imprisonment for up to six months, or both. It is possible for a fine to be imposed at first, and time in prison substituted later, if the fine is not paid (this is called "time in default"). The way the court is to calculate how much jail time has to be served for any given amount unpaid, is set out in the Criminal Code [s.734].
If time is allowed for payment of a fine, it should be a minimum of 14 clear days (that is, 14 days not including the date of sentencing and the date of payment). You can request extra time, which the court may or may not grant (it is not uncommon for as long as six months or more to be allowed, in cases where the person involved has a very low income, and/or the fine is quite large).
All the details of a fine, and how it is to be paid, must now be set out in a Fine Order, which the court registry should give you. If the province where you live has a Fine Option Program, the Order may allow you to work off some of the amount of the fine.
The Conditional Sentence
There is a (relatively) new kind of sentence, called a Conditional Sentence. If you are sentenced to prison for less than two years, the judge now has the option of ordering that the sentence be served in the community, rather than in jail. If so, conditions will be attached, as with probation. The conditions must be followed carefully. Any breach of them can lead to you being required to go back into court to explain. If the judge at that hearing is not satisfied with the explanation or excuse, he or she can order that you serve all or part of the time left on your sentence in jail.
Speaking to Sentence
If you plead guilty, or are convicted after a trial, you will have a chance to tell the judge about anything you think should make the sentence lighter. This will be done for you by your lawyer, if you have one, or you can speak for yourself.
The most important things to concentrate on, after you've given the judge a brief personal background with details of your age and education, family, home and work situation, etc., are:
- personal factors that should cause the judge to be more sympathetic towards you, such as poor health or other difficulties;
- personal circumstances or achievements that show you are a good citizen, like schooling, job, family attachments, volunteer work, courses or counselling taken, etc.;
- circumstances surrounding the offence that make what you did less blameworthy, or at least more understandable;
- facts that make your situation unique, so that a heavy penalty is not needed to act as a general deterrent against crime in society;
- any reason why a particular sentence might be especially hard on yo - -for instance, why you would find it difficult to pay a fine, or why a jail sentence would cause family hardship;
- your feelings about the offence, that show you are unlikely to do it again, so that a harsh punishment is not necessary for your own deterrence.
Most importantly, if there were circumstances that made you act the way you did, if you regret doing so, and/or do not intend to do so again, make sure the judge knows all that. For most offences, the judge has a lot of discretion in how big a sentence to impose, and a serious, respectful and apologetic attitude on your part will go a long way towards getting him or her to be lenient.
The 1996 Changes in Sentencing Law
In September, 1996, the part of the Criminal Code dealing with sentencing was completely re-written, and one of the big changes was a clear statement that judges should avoid giving jail time, if at all possible.
Another change made official what has long been done in British Columbia, in the "Diversion" program. For minor first offences, where the accused person admits what he or she has done, and wants to make amends, the whole thing can sometimes be dealt with outside the regular justice system. If you are in this situation, and are willing to take responsibility for whatever you have done (and avoid a criminal record), it might be worth asking the prosecutor's office if they are willing to consider Diversion (officially called Alternative Measures). This would usually be done after the first appearance in court.
If the Crown is willing, there will be an interview with whichever group is responsible for the program in your province (in B.C., it is the John Howard Society), and if they too approve, a contract will have to be signed. The contract acknowledges the harm that you have done, and sets out what you will do to make up for it, often by some form of community work. Once the contract is signed, the Crown normally enters a stay of the charge against you, so that you do not have to appear in court any more.
Further Reading
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FIRST LINE CRIMINAL LAW INFORMATION