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Sentencing

While criminal lawyers spend countless hours analyzing particulars, preparing for, and conducting trials with the goal of impeaching witnesses and excluding incriminating evidence, it should be noted that the vast majority – perhaps 90% of criminal cases – are resolved by way of a guilty plea. Obviously, accused persons who have been convicted must also prepare for sentencing. As experienced, skilled defence lawyers, our goal is to obtain the most lenient sentence for our clients that the law will allow.

Range of Available Sentences

No Criminal Record

There are police investigations that result in outcomes that fall short of a conviction, so there is technically no sentence ever imposed. Clearly, these results are the best possible outcome for a person suspected of committing a crime. These outcomes include:

  • No charge being approved because Crown considers that there is insufficient evidence that would lead to a conviction. Alternatively, Crown may elect to not approve a charge because, in the circumstances, there is no public interest in proceeding with the prosecution.
  • Charges that are resolved through Alternative Measures. The alternative measures program is a system by which first time offenders who are prepared to take responsibility for their actions can avoid a criminal prosecution by admitting the offence in an informal way and agreeing to perform restorative justice requirements such as apologies and community work service.
  • Charges that are resolved by way of a Peace Bond – a recognizance under s. 810 of the Criminal Code. When a person enters into a Peace Bond, they are not convicted of a criminal offence. Rather, they are placed under a court order for up to 12 months to abide by certain conditions, typically conditions that prevent contact with the complainant or other witnesses to an allegation.

Discharges

Canadian law permits a court that has found an accused guilty, or who has pleaded guilty, to be “discharged” either on conditions or absolutely. A discharge will be granted only where the court is able to conclude that in the circumstances of the offence and of the offender, that it is in both the best interests of the accused and the community for a discharge to be granted rather than a conviction to be entered. A discharge is available for many offences, but is generally not available for serious offences that involve violence, or where the Criminal Code provides for minimum mandatory sentences.

The effect of an Absolute Discharge is that the accused is able to leave the court with absolutely no further obligations or conditions. The Criminal Records Act provides that the record of an absolute discharge may not be disclosed to anyone after twelve months have elapsed.

The effect of a Conditional Discharge is somewhat different. The court may place the discharged person on a probation order, on various conditions, for up to three years. Conditions may include such things as “no contact,” no weapons, or counselling conditions. The Criminal Records Act provides that the record of a conditional discharge may not be disclosed to anyone after three years have elapsed.

Suspended Sentence and Probation

The court may suspend the passing of sentence and place the accused on probation for any offence that does not carry a mandatory minimum sentence. A probation order may contain such “reasonable conditions” as the court considers desirable. For example, it may require the accused to report regularly to a probation officer; to make efforts to seek and obtain employment or education, refrain from the use of alcohol, cannabis, non-prescription drugs, or to take counselling as directed. It is a separate chargeable offence if the offender breaches the probation order. When the court suspends sentence, and places the offender on probation, the offender obtains a criminal conviction record for the offence. The record is permanent, but the offender may apply for a pardon or record suspension if they obtain no further convictions and at least 5 years elapse in the case of summary convictions and 10 years elapse in the case of indictable convictions.

Recent Successes

R. vs. A.J. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $13,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter in both the civil and criminal context. No further liability. No criminal charges.

R. vs. M.M. – New Westminster Police Investigation

Charge: Sexual Assault Investigation.
Issue: Whether there was sufficient evidence for police to recommend that criminal charges be approved.
Result: Mr. Gauthier was able to guide our client through the police investigation, and to provide police with information on our client's behalf. Ultimately, police decided not to forward any charge to Crow. No charges approved. No criminal record.

R. vs. C.T. – Insurance Fraud Investigation

Charges: Fraud Under $5,000
Issue: Given our client's repayment of the alleged fraudulent health insurance benefits, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Gauthier was able to settle the matter civilly on our client's behalf without any further civil or criminal proceeding. No charges were approved.

R. vs. A.S. – Port Coquitlam Provincial Court

Charges: Assault (domestic) Reduced to Peace Bond.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to continue with the criminal prosecution.
Result: Mr. Mines was able to steer our client through a course of rehabilitation and persuaded Crown to stay the assault charge and to allow our client to enter into a Peace Bond.

R. vs. G.V. – Vancouver Provincial Court

Charges: Assault; Uttering Threats.
Issue: Whether there was sufficient evidence for criminal charges to be approved.
Result: Mr. Mines was able to provide Crown counsel with additional information and persuaded Crown that it was not in the public interest to proceed with any criminal charges.

R. vs. M.H.E. – Abbotsford Provincial Court

Charges: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Mines was able to provide information to Crown counsel regarding our client's circumstances and was able to persuade Crown that there was no public interest in proceeding with a criminal prosecution. No criminal record.

R. vs. E.C. – Vancouver Provincial Court

Charges: Sexual Assault; Assault.
Issue: Given the rehabilitative steps we guided our client through, the nature of the sex assault itself and our client's true remorse, whether a jail sentence or house arrest were required.
Result: Mr. Mines was able to persuade Crown counsel to make a joint submission for a conditional discharge. After hearing Mr. Mines' submissions on our client's behalf, the trial judge granted our client the discharge. No jail or house arrest. No criminal conviction.

R. vs. N. O. – Courtenay Provincial Court

Charges: Assault Causing Bodily Harm x2; Assault x3.
Issues: Whether there was a substantial likelihood of a conviction.
Result: Mr. Gauthier was able to provide information to Crown counsel which cast the complainant's credibility and reliability into doubt. The Crown made an adjournment application which Mr. Gauthier opposed. Mr. Gauthier was able to persuade Crown to stay all of the criminal charges upon our client entering into a Peace Bond. No jail; No criminal record.

R. v. K.T. – Insurance Fraud Investigation

Charges: Fraud Under $5000.
Issue: Given our client's repayment of the alleged fraudulent health insurance benefit claims, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Mines was able settle the matter on our client's behalf and received a Release from the insurer ending the matter without any further civil or criminal proceeding. No charges were approved.

R. vs. A.H. – Vancouver Supreme Court

Charges: Sentence Appeal - Forcible entry; Assault with a weapon.
Issue: Whether the Supreme Court would uphold our client's conditional discharge that was granted to our client by the Provincial Court.
Result: After hearing Mr. Gauthier's submissions on this sentence appeal, the Supreme Court justice agreed with Mr. Gautier and ruled that the sentence was appropriate in all the circumstances. The court dismissed the Crown's appeal. The conditional discharge was upheld.

R. v. J.F. – Dawson Creek Provincial Court

Charge: Sexual Assault.
Issue: The credibility of the complainant's testimony during this three day trial.
Result: After vigorous cross examination of the complainant and another Crown eyewitness, Mr. Gauthier made submissions which were accepted by the trial judge. The court found our client to be not guilty and aquitted him of the charge. No jail. No criminal record.

R. vs. D.C. – Port Coquitlam Provincial Court

Charges: Sexual Assault (x2).
Issue: In the circumstances of these historic charges and our client's rehabilitation, whether a community based sentence was appropriate.
Result: Notwithstanding that Crown counsel sought a 20 month jail sentence, the trial judge agreed with Mr. Mines' submission that, in the circumstances of our client's genuine remorse and rehabilitation, it was appropriate to  grant a conditional sentence of 21 months. No jail.

Fines

For summary conviction offences, there is a maximum fine of $5000. For indictable offences, there is no maximum fine. A fine is almost always imposed along with a term that there shall be a set amount of jail time to be served in default of payments. If a person is unable to pay their fine within the prescribed time, they may apply to the court for an extension of time to pay. Generally, if it seems that the applicant has been diligent in their payment attempts, the court will grant an extension of time.

Imprisonment and Release

When a person is sentenced to a jail term of less than two years, the sentence is served within the province, in a provincial corrections centre. When the sentence is two years or more, the sentence is served in a federal penitentiary. Generally, prisoners within the provincial system will be released after serving two thirds of their sentence. This is known as earned remission and is granted for good behavior within the facility. Prisoners within the federal system, and those serving long sentences within the provincial system, are eligible for conditional release before sentence expiration if they qualify for parole. The Parole Board of Canada is responsible for making decision about parole. When a person is granted parole, they may serve the remaining portion of their sentence in the community, usually on restrictive and protective conditions.

Intermittent Sentence of Imprisonment

When a person is sentenced to a jail term of 90 days or less, the court may order that the sentence can be served, for example, on 3-day weekends, which allows the person to be released into the community on the remaining days. This type of sentence will be granted in situations where the court views it as desirable for the person to maintain employment or education.

Conditional Sentence Order (CSO)

Under section 742.1 of the Criminal Code, if a person is sentenced to a term of less than two years, the court may order that the sentence can be served in the community under strict conditions. This type of sentence is only available when the court can be satisfied that community safety would not be endangered and that serving the sentence in the community rather than a jail would be consistent with the “fundamental purpose and principles of sentencing.”

A CSO is not available for all offences, including:

  • Where there is a mandatory minimum term of imprisonment; and
  • For any offence where the maximum sentence is 10 years or greater.

In every case in which a CSO is available, we will endeavor to provide a detailed sentencing submission, supported by case law, that highlights why justice can be served through a strict and reasonable non-custodial sentence.

Sentencing Considerations

The court has a vast range of discretion within the limits of the Criminal Code provisions and prior case law that govern sentencing. Section 718 of the Code sets out the purpose and principles that are to govern sentencing. The basic objectives are:

  • To denounce unlawful conduct and the harm it causes;
  • To deter the offender and others from committing offences;
  • To separate offenders from society where necessary;
  • To assist in rehabilitating offenders;
  • To provide reparations to victims;
  • To promote a sense of responsibility in offenders.

Courts will also consider the following principles:

  • Any relevant aggravating or mitigating factors relating to the nature of the offence or the circumstances of the offender;
  • Aggravating factors include such things as:
    • Evidence that the offence was motivated by hate or bias; and
    • Evidence that the victim was a spouse or young person or that the offender was in a position of trust.

As skilled defence lawyers, we will always advocate for our client’s rights at any sentencing hearing. We will emphasize the rehabilitative steps our client has taken (often under our guidance). We will emphasize the following sentencing principles that are set out under s. 718.2 of the Code:

  • An offender should not be deprived of liberty if less restrictive sanctions may be appropriate;
  • All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done should be considered for all offenders (with particular attention to the circumstances of Aboriginal offenders).

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.