Chapter 9-From Sentencing to Release

Chapter at a Glance
9.1 Introduction
9.2 The Process and Goals of sentencing
9.3 Sentencing an Offender
9.4 Restorative Justice and Victims of Crime
9.5 Appeals
9.6 Prison
9.7 Conditional Releases

Chapter 9: From Sentencing to Release
9.1 Introduction
This chapter is about examining the sentencing and releasing of offenders. Some want to punish offenders
and keep them in prison for as long as possible while others believe employment, education, and social
programs will help the offender return to society but all theories must be balanced with the concern for
public safety.
9.2 The Process and Goals of Sentencing
Factors a judge must consider:
Crown
Charter
Defence submission
Pre-sentence report
Accuseds criminal
record
Plea bargain
Public opinion
Availability of
resources
Pre-trial custody
Guilty plea
Precedents
Sentencing principles
Community
Criminal Code
Parole rules
Victim impact
statement
Penitentiary/reformat
ory

Sentencing may occur after the accused has been found guilty
Immediately or weeks later
Judge may order a probation officer to prepare a pre-sentence report but it is not usually made for minor
offences
Pre-sentence report: A report prepared for the court prior to the accuseds sentencing that sets out
his/her background
Defence and Crown have the right to respond to sentencing and to call witnesses to testify about the
offenders background
If the Crown and the offender disagree on evidence at the time of sentencing, judge can listen to
sworn evidence (evidence given under oath)
When passing a sentence, the judge must:
refer to the Criminal Code for penalties available
make sure that rights from the Charter are not being violated (Ex// section 12)
Imposing a Sentence
Canadian judges have considerable freedom in imposing sentences.
Ex// An offender found guilty of an indictable offence that carries a maximum penalty of 14 years
can receive any term up to the maximum
Judges often refer to precedents (previous similar cases) but are not required to follow sentences
imposed in those cases
A judge may also consider:
The time spent in custody awaiting trial and/or sentencing
The circumstances of the convicted person
The potential for rehabilitation
Judge may ask for a victim impact statement
Usually significant for offences that result in lasting psychological and financial
damage (Ex// assault causing bodily harm, murder, etc)
Judge must consider the will of Parliament
Penalties have been increased or judges have been given more leeway to
prescribe an appropriate sentence
Parliament has also noted that fewer offenders should be imprisoned, and it has
introduced the conditional sentence and the label long-term offence
Purpose and Principles of Sentencing
1995 Parliament added a statement about sentencing to the Criminal Code.
It gives judges some direction in sentencing and it is based on the idea that appropriate sentencing
promotes respect for law and the maintenance of a just, peaceful, and safe society.
4 main goals when punishing offenders:
Deterrence
Rehabilitation
Retribution
Segregation
Deterrence
Definition: theory that criminal laws are passed with well-defined punishments to discourage individual
criminal defendants from becoming repeat offenders and to discourage others in society from engaging in
similar criminal activity
Specific deterrence: Sentencing should deter an offender from committing a criminal offence in
the future
General deterrence: All members of society should be deterred from committing a similar crime
Rehabilitation (Resocialization)
Definition: the restoration of someone to a useful place in society
The Criminal Code says that sentencing should rehabilitate offenders
Supervised parole helps offenders to prepare for a return to society
Such assistance is intended to support former inmates when they return to society
and reduce recidivism (return to prison upon being convicted of new offences)
Retribution
Definition: punishment that is considered to be morally right and fully deserved
The sentence imposed on an offender is a form of retribution
In R. v. M (C.A.), the Supreme Court of Canada defined retribution as an objective that
properly reflects the moral culpability of the offender, the intentional risk-taking of the
offender, the consequential harm caused by the offender, and the normative character of the
offenders conduct
Segregation
Definition: the enforced separation of different racial groups in a country, community, or establishment.
The Criminal Code states that one purpose of sentencing is to segregate offenders from society
The Canadian government has moved to reduce the number of offenders who are imprisoned.
However, imprisonment is usually a given for a serious crime such as murder
Other Goals of Sentencing
Section 718 directs judges to consider reparations (repayments) for harm done to the victims and
the community, and it provides sentencing alternatives for this option
Judges should consider whether the offender has shown any remorse for his or her conduct
9.3: Sentencing An Offender
Absolute or Conditional Discharge
Absolute:
Effective immediately with no conditions attached.
Conditional:
Accused can dodge a record of conviction as long as they follow certain conditions prescribed by the
judge in a probation order at time of sentencing.
How its decided?
If offender is sentenced to less than 14 years, crime committed carries no minimum sentence.
What does it mean?
No conviction recorded against offender.
Usually
Discharge granted when it is a first offence case, or when publicity attached to case is so negative it
turns into a sort of penalty.

Suspended Sentence and Probation
Suspended Sentence:
Means that a sentence is delayed.
Probation:
Requires that the accused keep the peace, be of good behaviour, appear in court when required, and
do anything else the judge orders.
Can be used in addition to fines and to sentences of less than two years.
An offender who ignores probation order may have to return to court.
How its decided?
A judge considers the age and character of the accused, as well as the nature and circumstances of
the offence.
Conditions?
If offender meets certain conditions, sentence will not be served.
Offender still has a record of conviction and could be placed on probation for up to three years.


Conditional Sentence
What does it mean?
Offender is sentenced to less than two years in prison, but allows offender to serve the time in the
community.
Conditions?
Offender must keep the peace, be of good behaviour, and appear before court when asked.
May be additional orders to abstain from drug and alcohol use and to not carry weapons.
How its decided?
If a sentence is less than two years and the crime carries no minimum sentence, the judge may
choose to impose a conditional sentence.

Suspension of a Privilege
What does it mean?
Suspension of a social privilege. The courts can suspend ones drivers licence or a restaurants
liquor licence.
Side Notes
Usually have to surrender suspended licence before leaving court.
Authorities can refuse to issue/renew a licence if a fine has not been paid.

Peace Bond
What does it mean?
Requires a person to keep the peace and be of good behaviour for up to 12 months.
How its decided?
Usually used in minor assault cases.
Someone can also apply for someone they feel is a danger to the people & environment around
him/her to enter into a peace bond.
Conditions?
Once accused has entered into a peace bond, charges may be withdrawn, but conditions such as
avoiding the person who requested the peace bond to be applied, and agreeing not to own any
weapons are imposed.
Side Notes
Parliament has amended the Criminal Code so that certain groups may have to enter a peace bond on
the complaint of a citizen.
i.e. If a citizen swears that someone may commit an act of sexual assault to persons under
the age of 14, the judge may order the accused to refrain from having contact with people
under 14 years old, from being in public swimming areas/parks where persons younger than
14 years are present, etc.
Restitution (Also Known As Compensation)
What does it mean?
A penalty that requires offender to repay victim in some way - whether it be financially, through
labour, or something else victim requests.
Meant to reduce the impact of the offence on the victim and to compensate the victim.
How its decided?
Victim can ask for restitution at the time of sentencing.
In granting restitution, judge may consider a victim impact statement, and offenders ability to
provide restitution.
Forms of Compensation
Cash compensation (payments made over time), labour-related compensation, etc.
The victim can sue the offender for anything they feel entitled to obtain.
Penalty for ignoring a court ordered restitution is imprisonment.
Side Notes
Some communities have programs that let the victim and the offender work out the compensation.
Allows the victim to convey the impact of the offense directly to the offender
Has a more positive effect than a prison sentence

Community Service Orders
What does it mean?
Offender can be sentenced to work a set number of hours for a local organization or a government
project.
Three reasons community service may prevent offenders from offending
May enhance self-worth as they are making a useful social contribution.
Allows offender to associate with people in a community, not criminals in institutions.
Occupies much of offenders free time.
Side Notes
Community service orders that will benefit community are often part of a sentence for high-profile
individuals.

Deportation
What does it mean?
Anyone thats not a Canadian citizen and commits a serious offence in Canada can be deported to
their country of origin or any other country.
Federal govt applies to courts for such a deportation order.
Side Notes
Canadian residents who commit serious offences in other countries can be returned to those
countries for trial or to receive punishment.
Fines
Maximum Fines
Summary offences committed by individuals: Generally, $2000 (Criminal Code).
Under other statutes, max can be higher.
Penalty for assault when the Crown proceeds summarily: $5000.
Summary offences committed by corporations: $25 000.
For indictable offences?
No maximum fine
If penalty for an offence is 5 years or less, offender can pay instead of going to prison.
If maximum penalty is > 5 years, a fine (amount determined by judge) may be imposed, but only on
top of imprisonment.
Side Notes
Offender may request at least 14 days to pay the fine
Fine Option Program: Instead of paying a fine, offender can earn credits for doing work similar to
community service.
Not available in some provinces (i.e. Ontario) and generally available for provincial and
federal offences.
Fines cannot be substituted if stated penalty defines a minimum jail term.

Imprisonment
Terms
For most summary conviction offences: Up to six months
Some offences (uttering threats, assault with a weapon, sexual assault, failure to comply
with a probation order) carry a penalty of up to 18 months.
Max imprisonment for indictable offences: 2 years to life imprisonment, depending on seriousness
of crime.
For certain offences (i.e. driving while impaired & failure to give breath sample) there is a minimum
penalty. Offender may pay fine only instead of serving sentence of < 5 years.
Judge decides whether or not the amount of time spent in custody pretrial will count toward a
sentence.
Standard rule for pretrial custody: It is equal to twice the time when considering a penalty
because there is no parole taken from the time, and no rehabilitation/recreational facilities
available. i.e. Being in custody 3 months means youve served 6 months of your sentence.

Which prison?
If sentence is
30 days or less: Offender kept at local detention centre.
more than 30 days but less than 2 years: Offender placed in provincial prison or
reformatory.
2 years or more: Offender is sent to a federal institution (penitentiary).

Types of Sentences
Concurrent & Consecutive Sentences
When people are convicted of two or more crimes, they may serve the sentence either concurrently
or consecutively, depending on judges decision.
Concurrent sentence:
Offender serves both (or more) penalties at once.
Used when offences are similar or committed at the same time.
Consecutive sentence:
Offender serves both (or more) penalties one after the other.
Intermittent Sentence
Offender serves sentence on weekends or at night while maintaining a job.
Can be imposed only if original sentence is < 90 days.
Comes with a probation order (to outline behavioural expectations while not in prison).
**The Principle of Totality guides sentencing by looking at the whole when an offender has committed
several crimes, ensuring that the sentences dont add up to an overlong prison term.


Sentencing Dangerous and Long-Term Offenders
Dangerous / Long-Term Offender:
One who commits a personal injury offence may be declared a dangerous or long-term offender.
Personal Injury Offence:
Indictable offence (other than treason or first-/second-degree murder)
Involves violence or attempted violence, conduct that endangers the life, safety, or
psychological makeup of the victim, or sexual assault.
Little hope of being rehabilitated or they pose a threat to society.
Being declared as a dangerous/long-term offender
To be declared a dangerous offender, one of the following conditions must exist.
Offender...
has a pattern of aggressive behaviour that is unlikely to change
is indifferent to the consequences of their behaviour
committed such a grave offence that future behaviour will likely be abnormal
has sexual impulses that will likely cause pain or injury to others
Declaration made at a hearing following a psychiatric assessment of offender.
Prospects for treatment/cure irrelevant
Offender not sentenced on original offence but receives an indeterminate sentence where offender
stays in an institution until proves to be able to return to society and display normal behaviour.
The Crown applies to designate someone a long-term offender when they cannot be proven dangerous.
Offender
repeatedly displays behaviour that could cause death, injury or psychological harm
would likely re-offend after a sexual offence
They would receive 10 years of community supervision on top of original sentence.


Capital Punishment
Widely known as the death penalty
Officially abolished by Parliament in 1976 for Criminal Code offences.
Extremely controversial issue, very hotly debated over the course of the past 50 years.
1962: Law was amended to distinguish between two categories of murder: capital and non-
capital.
Capital: planned, deliberate, committed during a violent crime, committed under
contract, and murder of police officer or prison guard while on duty.
Non-capital: All other types of murder, punishable by life imprisonment.
After 1962: All death sentences were commuted to life imprisonment by federal Cabinet.
1967: Capital punishment suspended for 5 years, except for convicted murderers of police
officers and prison guards.
1972: Suspension extended another 5 years.
1976: Parliament abolished capital punishment.
1984: Debated once more, but not returned.
1998: Canada wiped out all references to capital punishment with its elimination from the
National Defence Act for such military offences as treason and mutiny.

Chapter 9.4 Summary; Restorative Justice and Victims of Crime
Restorative Justice: Focuses on healing relationships. Rather than focusing on dealing with the crime, it
deals with those that have suffered because of the crime: the offender, the victim and the community. Its
a recent addition to criminal law.
Sentencing, Healing and Releasing Circles
Circles are often used by Aboriginal communities to resolve disputes
Sentencing Circles: Bring the offender, the victim, family and community members, a judge, lawyers,
and the police to recommend the sentence for the offender. As an end result they may have taken part in
developing the offenders ultimate sentence.
Healing Circles: Are held to resolve the conflict between the offender and the victim. It allows them to
voice their feelings and to signify theyve undergone a personal healing.
Releasing Circles: Are held in Aboriginal circles at the end of a sentence. Members of the National
Parole Board, the community, and the offender meet. Realising circles exist to allow the offender to
return to the community successfully.
Victims of Crime
Criminal matter is prosecuted by the Crown on behalf of society, not just the victim.
The Crown solely decides on the charge, introduces the evidence and asks for a penalty.
Victims however are often left out of the process.
Research indicated that when victims are involved in the criminal process, they may heal quicker
from the crime committed against them.
In 1985, the United Nations General Assembly approved a Charter Victims Rights.
It provides the basis for similar documents in some provinces and territories.
In the majority of provinces, victims have access to support services at the time of the offence,
such as sexual assault crisis centre or twenty-four-hour crisis and support lines.
In some jurisdictions, assistance programs give information about the prosecution process and emotional
support during the trial and sentencing.
The victims are kept informed of the charges, plea, and sentencing, by the Crown.
Victim impact statements may also be created, with assistance from support staff. This statement can
only outline the harm done to, or loss suffered by the victim and/or their family members. The statement
cannot include any other commentary, including a suggested sentence. It can be shown to the judge
before sentencing. The statement may also be read in court by the victim, and the victim can also be
called as a witness at a sentencing hearing.
The Criminal Code lets the Crown request restitution for the victim. The judge can also consider
restitution, without the formal application of the victim. Restitution can be given for
Damage
Loss or destruction of property
Bodily harm, including loss of income or support and psychological services
Costs incurred by spouses who have been forced from their home because of bodily harm or the
threat of bodily harm
Restitution can even be ordered for indirect victims.
For example: If a stolen car is sold to someone in good faith, and the car is later seized as part of a
criminal proceeding, restitution can be ordered for the purchaser to cover losses.
Restitution is taken seriously by Parliament.
It has given judges the power to insist that the restitution order be paid before any fine that is
imposed. Helps to ensure the victim is compensated even when the offender cannot pay.
Under the Corrections and Conditional Release Act (formerly the Parole Act), the victim has the right to
know
The offence of which the offender was convicted
The length of the sentence
The penitentiary where the sentence is being served.
This Act allows victims to give info about the crime when the inmate is applying for parole. Statements
may be provided by the victim during parole sessions to help officials decide whether or not to release an
offender
The victim can also be informed of the date of the offenders release, their destination and any conditions
attached to the release. Any who can prove to the parole board that theyve been harmed by the offenders
acts may receive this info as well. Some provinces allow victims to register in order to receive prompt
info related to the case.
In some provinces, a victim can register to receive prompt information related to the movement of
provincially sentenced inmates within the prison system, as well as inmate leaves or escapes. Victims
may also contact the supervision probation officer dealing with community supervision.
Criminal Injuries Compensation Fund
Has existed since 1973 and is Financed by the federal and provincial governments
This fund uses public money to compensate a person who is injured in some way when a crime is
committed, or when they assist an officer making an arrest, makes a citizens arrest, or tries to
prevent a crime.
Victims sometimes turn to the fund because the criminal has no money or has not yet been
caught.
The award is intended to cover specific situations such as lost pay, pain and suffering from injuries,
support of a child born as the result of rape, medical bills and prescription, loss of income by
dependants if the victim dies, funeral expenses, or anything else that the board feels is reasonable.
Each situation must be verified, and the victim must return the money if they successfully sue the
offender for compensations.
Victim Assistance Fund
Created to set up education, counselling, and other programs for victims of crime.
Part of the funds financing is provided by convicted offenders, who must pay a surcharge on
their fines.
This can be up to 15 percent of the fine, or an amount not greater than $10,000 where no fine is
imposed.
Appeals:
An appeal is asking a higher court to reverse the decision of a trial court after the final verdict is
announced.
The Court of Appeal for Ontario is located in historic Osgoode Hall in downtown Toronto. The Court is
composed of the Chief Justice of Ontario, the Associate Chief Justice of Ontario and 20 other judges,
The court hears over 1000 appeals and over 1000 motions each year.
A motion is a formal request made to a judge for an order or judgment.
Motions are made in court all the time for many purposes: to continue (postpone) a trial to a later
day or for a rehearing or even temporary child support.
Most motions require a written petition which briefly states a list of legal reasons for why the
motion should be granted. Which is often called (points and authorities)
Appeals are heard by panels of three or sometimes five judges.
Motions are usually heard by one judge but 25% of time they are dealt with by panels of three judges.
The courts jurisdiction includes that consideration of both civil and criminal appeals from decisions of
Ontario's two trial courts, the Superior Court of Justice and Ontario Court of Justice.
An appeal is not:
A new trial
A hearing with witnesses or a jury
A chance to present new evidence or new witnesses to a new judge,( except in exceptional
circumstances)
A way to avoid obeying the trial courts order.

The Court of Appeal will not hear an appeal of every case.
In some cases, you must ask the permission of the Court to appeal through a process called leave to
appeal and even if the Court of Appeal hears your appeal, it will not:

Re-hear your case from start to finish;
Change the decision because it seems unfair; or
Change the decision just because the Court of Appeal disagrees with it. (The decision must be
incorrect due to a factual or legal error.)

In summary, for an appeal to be successful, you must show that the decision-maker made a factual or
legal error that affected the outcome of your case. An appeal is not a new trial or re-hearing of your case.

Applying for an appeal generally has a time limit of 30 days. If the accused is serving jail time then they
will be allowed to be released during the appeal time. Only if the court agrees. They might not let the
person leave if they didnt have the best of behaviour.
For appeals of a summary offence the court will examine the transcript of the trial and what happened.
Sometimes the court examines facts agreed on by the defence and the crown
For appeal of indictable offences held in higher courts the appellant and the respondent both have to
present their arguments.
The defence can also appeal a conviction, verdict sentence, or ruling on fitness to stand trial for summary
conviction offence.
Defence can appeal a conviction for indictable offence based on:
A question of law
Question of law and fact or fact alone
Any other reason that the appeal court believes is worthy.
Crown can appeal decision of not guilty for an indictable offence on the following grounds:
Question of law
The sentence, if court gives permission
Trial judge orders that indictment is invalid, or judge stay the proceedings.

Prison:
Prison is viewed different by many people
Some think people shouldnt be in there as long as they are because of how they view the whole
justice system and others dont care and strongly believe that they should serve the maximum
amount of time in prison
Entering Prison System:
Rules governing conditional release are outlined in the Corrections and Conditional Release Act.
An offender who goes to prison comes under the jurisdiction of the provincial or federal
correctional services
If you get arrested within the province then that provinces correctional services have control over
you same with federal.
Each province has its own correctional services guideline and is responsible for offenders in
provincial prisons.
Correctional Services are responsible for:
Incarcerating all offenders
Incarcerating is being confined/ imprisonment
Processing parole applications
Supervising offender who were granted any type of early release, and offenders who are being
release prior to sentenced release date

Inmates in provincial constitutions serve time in 3 different types of ways.
Closed custody, is mostly for offenders who are dangerous and most likely escape, or are hard to
manage. Open custody allows inmates to work, usually in outdoor labor and also correctional facilities
where theyre allowed to work and go to school on a daily basis but must return to the facility at night.
Many of the residents are inmates on day parole
Federal correctional facilities have a whole different game plan. Theyre more extreme. Its not just a
province it the whole country.
They have maximum level of security, medium and minimum
Community correctional center highest level of security is equal to less than minimum-security prisons
federally. Prison inmates may undergo therapy with a team that that helps with rehabilitation and
encourages the inmate to broaden their social contacts, Different t institutions offer different programs
and they all have a broad range to choose from such as life skills, literacy. You can learn how to read in
prison. Treatment programs for all sorts of things like substance abuse and drugs
Inmates are also encouraged to join the educational programs and are paid a daily fee which they can use
in the canteen.
9.7 Conditional Release
The goal of conditional release is to allow an offender to return to society under supervision in
preparation for an unsupervised release.
Temporary Absence
Escorted and unescorted absences may be granted to allow offenders to participate in
rehabilitation programs, obtain medical treatment, or attend significant family events
All offenders are eligible for absences
For certain types of absences, only those classified as medium or minimum security are eligible
Offenders are accompanied by staff or citizen volunteers during escorted absences
Day Parole
To parole an offender is to release him or her after a portion of the sentence has been served.
Day parole is when an offender is released during the day but must return to the institution or a
halfway house each night
Day parole allows offenders to attend work or school to prepare for full parole or statutory release
Full Parole
Full Parole is automatically set for a review at the start of an offenders incarceration
During the parole review, a great deal of information is compiled:
- What efforts has the offender made in prison?
- Has the offender received and benefitted from treatment?
- Does he or she have any job prospects?

After that information is compiled, a parole hearing is set.
The offender and anyone over 18 years of age may attend the hearing as an observer.
Parole for Murder
2 different parole rules/conditions:
1
st
DEGREE: sentence to life in prison-> not allowed full parole for 25 years
2
nd
DEGREE: parole eligibility established by judge at time of sentencing between 10-25
years
Both may get unescorted temporary absence or 3 years before full parole
Sentence more than 15 years-> apply for judicial review which is also called faint hope clause
MORE THAN ONE MURDER DOESNT HAVE ELIGABLITY FOR JUDICAL REVIEW
Accelerated Review
First term in penitentiary
Either committed non-violent offence or drug offence is eligible.
They must be released on full parole, unless any reasonable grounds
Statutory Release
Released after serving two third of sentence if they havent been released on parole
Life sentence not eligible
Parole board has power to add conditions to the release