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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. J.A. - Vancouver Provincial Court

Charges: Personation, Use of Forged Identity Documents, Resist Arrest.
Issue: Whether the search and seizure of the documents was an unlawful Charter breach.
Result: Mr. Mines was able to persuade Crown and the Court that, in all the circumstances, it was in the public interest to grant our client a conditional discharge without any reporting condition. 

R. vs. J.H. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm (domestic).
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to convince Crown counsel to enter a stay of proceedings just prior to the trial date. No criminal record.

R. vs. J.B. - ICBC Fraud Investigation

Charge: Theft Under$5000.
Issue: Whether there was a public interest in approving the charge.
Result: Mr. Johnson was able to persuade Crown counsel that there was no public interest in approving any charge whatsoever. No criminal record.

R. vs. M.K. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether it was appropriate for our client to be granted a conditional discharge.
Result: Mr. Mines was able to persuade the trial judge to grant our client a conditional discharge rather than the conviction that Crown counsel was seeking. No criminal record.

R. v. M.P. - Vancouver Provincial Court

Charge: Theft Under$5000.
Issue: Whether there was a public interest in approving the charge.
Result: Mr. Johnson was able to persuade Crown counsel that there was no public interest in approving any charge whatsoever. No criminal record.

R. vs. O.A. - Surrey Provincial Court

Charge: Assault (domestic). Issue: Given the lack of clarity…

R. vs. A.U. - Vancouver Provincial Court

strong>Charges: Sexual Assault; Assault; Theft Under; Breach of Undertaking.
Issue: Given our client's circumstances and the circumstances of the allegations, whether it was in the public interest for Crown to proceed with all charges.
Result: Mr. Mines was able to persuade Crown counsel to proceed only on the assault charge and to stay proceedings on all other charges. After considering Mr. mines' submissions, the Court granted our client a conditional discharge and placed him on probation for 12 months. No criminal conviction.

R. vs. V.P. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Police Officer.
Issue: Given some weakness in the assault with weapon charge and the rehabilitative steps our client had taken, whether it was appropriate for the Crown to seek the jail sentence they were originally seeking.
Result: Mr. Johnson was able to persuade Crown counsel to enter a stay of proceedings on the AWW charge and to jointly seek a conditional discharge on the assault police officer charge. No jail. No criminal conviction.

R. vs. S.K. - Surrey Provincial Court

Charges: Fraud Over $5000 (from Employer).
Issue: Given the civil settlement  we were able to obtain on our client's behalf, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson, after successfully negotiating a civil settlement with the complainant, was able to persuade Crown counsel to not approve the criminal charges that RCMP had recommended. No jail. No criminal record.

R. vs. D.M. - Vancouver Provincial Court

Charges: Impaired Driving; Driving Over .08.
Issue: Whether it was in the public interest for Crown counsel to proceed with the criminal charges.
Result: Mr. Johnson was able to persuade Crown to allow our client to resolve this matter by pleading guilty to a lesser offence under the Motor Vehicle Act. Our client received a driving prohibition and fine. No criminal record.

R. v. S.W. - Courtenay RCMP Investigation

Charges: Possession for the Purpose of Trafficking.
Issue: Whether the search of the vehicle and our client was lawful.
Result: Mr. Mines was able to steer our client through the investigation and made representations to police that the search was unlawful. Police declined to recommend any  charges. No criminal record.

R. vs. A.N. - Vancouver Provincial Court

Charges: Assault with a Weapon.
Issue: Given the rehabilitative steps we guided our client through, whether it was in the public interest for Crown to seek a conviction on this charge.
Result: Mr. Johnson was able to persuade Crown to permit our client to plead to the lesser offence of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. No criminal conviction.

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.