Sentencing is not automatic. The range of possible outcomes is wide, and effective advocacy at the sentencing stage can mean the difference between a discharge and a penitentiary sentence.
After a plea of guilty or a conviction at trial, the court proceeds to sentencing. Sentencing in Ontario is governed by sections 718 to 721 of the Criminal Code, which set out the purposes and principles that guide the exercise of judicial discretion. Understanding these principles, and how to use them in your favour, is one of the most important things a skilled defence lawyer does.
The Purposes of Sentencing
The Criminal Code identifies several purposes of sentencing: denunciation of unlawful conduct, deterrence (both specific and general), separation of offenders from society where necessary, rehabilitation, reparation to victims and the community, and promotion of a sense of responsibility in the offender. In any given case, the weight given to each purpose varies depending on the nature of the offence, the offender, and the circumstances.
For first-time offenders facing minor charges, rehabilitation and reparation tend to dominate. For serious violent offences or cases involving vulnerable victims, denunciation and deterrence often receive more weight. A skilled defence lawyer frames the sentencing submission in terms of the principles that favour a less severe outcome and backs those arguments with evidence.
Range of Sentences Available
The range of sentences available in Ontario is wide. At the least punitive end: an absolute or conditional discharge means no criminal record is registered, provided any conditions are met. A fine, a probation order, a conditional sentence order served in the community, or a period of incarceration are progressively more serious options.
For indictable offences at the serious end of the spectrum, sentences can range from penitentiary terms of two years or more to life imprisonment for murder and a handful of other offences. Most cases fall somewhere in the middle, and the specific sentence depends heavily on the quality of advocacy at the sentencing hearing.
Credit for Time Already Served
For anyone who has spent time in custody waiting for their case to resolve, sentencing includes an important piece of arithmetic: credit for pre-sentence custody. Courts generally grant enhanced credit, up to one and a half days for every day spent in pre-trial custody, recognized by the Supreme Court in R v Summers, because time in a remand centre is harder and does not count toward parole eligibility the way a sentence does. On a serious matter where someone was denied bail, that credit can substantially reduce the sentence still to be served, sometimes meaning little or no additional custody. Making sure the full, accurate credit is calculated and argued is a basic but consequential part of a sentencing hearing.
Victim Impact Statements
Victims of crime have the right to file victim impact statements describing the harm caused by the offence. These statements are read into the record at sentencing and inform the judge's assessment of the harm caused. Defence counsel has the right to cross-examine the author of a victim impact statement if the content goes beyond describing personal impact and ventures into advocacy.
Pre-Sentence Reports and Character Evidence
The defence can call character witnesses at a sentencing hearing. Friends, family members, employers, and community members who can speak to the offender's character, rehabilitation, and contribution to the community can all be powerful witnesses. A pre-sentence report prepared by a probation officer is sometimes ordered by the court and summarizes the offender's background, circumstances, and risk level.
Defence counsel can also lead expert evidence on mental health, addiction, trauma, or other relevant circumstances. In cases involving Indigenous accused persons, a Gladue report is required. This report documents the unique systemic and background factors that affected the accused and must be considered by the sentencing judge.
Joint Submissions and Contested Sentencing
Where the Crown and defence have reached agreement on the appropriate sentence, they present a joint submission. For the purposes of how this relates to the overall outcome of your case, see the guide to charge withdrawals and plea outcomes in Ontario. Where there is no agreement, a contested sentencing hearing takes place, with both sides presenting evidence and argument.
Section 718 of the Criminal Code sets out the statutory purposes and principles of sentencing that govern every sentencing decision in Canadian criminal courts.
