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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. v. A.S. – Vancouver Provincial Court

Charges: B & E, Fraud over $5000, Motor vehicle theft; Identity theft, Driving while prohibited (x2).
Issue: Given our client’s personal circumstances and rehabilitative efforts, what would be the appropriate sentence.
Result:  Mr. Johnston was able to persuade Crown to make a joint submission for time-served, followed by a period of probation. The Crown directed stays of proceedings on several charges.  After hearing Mr. Johnston's submissions on our client's behalf, the sentencing judge noted that he would have ordinarily imposed a lengthy jail sentence for an accused in our client's position, but he accepted the joint submission. No further jail.

R. v. M.A.K. – Vancouver Provincial Court

Charge: Possession of fentanyl and carfentanil for the purposes of trafficking.

Issue: Given the information Mr. Johnston provided to Crown counsel regarding our client’s personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.

Result: Mr. Johnston was able to persuade the Crown that there were issues with respect to the Crown's evidence such that it was unlikely our client would be convicted at trial, and that there was insufficient public interest in continuing to prosecute our client in any case. Given this informaton, the Crown directed a stay of proceedings on the charge. No criminal record.

R. v. S.B. – Vancouver Provincial Court

Charge: Carrying a Concealed Weapon.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel regarding the circumstances of the incident and our client's background, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Johnston persuaded Crown counsel that there was insufficient public interest, leading Crown to enter a stay of proceedings. No criminal record.

R. v. M.A. Insurance Fraud Investigation

Charge: Insurance Fraud Under $5000.
Issue: Given our client's rehabilitation and repayment of the disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the insurance company to settle the matter on a civil basis. No criminal charges were forwarded. No criminal record.

R. v. D.S. – Whitehorse Yukon Territorial Court

Charge: Section 810 Recognizance (Peace Bond) Application.
Issue: Whether the Informant could prove her allegations on a balance of probabilities.
Result: After Mr. Gauthier' communications with the Informant, she declined to advance the case and, on the day of the trial, the court withdrew the Application. No record.

R. v. E.N. – North Vancouver Provincial Court

Charge: Fraud Under $5000.
Issue: Given the information Mr. Gauthier provided to Crown counsel regarding our client's personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown that there wa sno substantial likelihood of a conviction resulting ultimately in Crown declining to approve a charge. No criminal record.

R. v. E.N. – North Vancouver Provincial Court

Charge: Mischief Under $5000.
Issue: Given the information Mr. Gauthier provided to Crown counsel regarding our client’s personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown that there was no substantial likelihood of a conviction resulting ultimately in Crown declining to approve a charge. No criminal record.

R. v. K.D. – Vancouver Provincial Court

Charges: Failing to Remain at the Scene of an Accident.
Issue: Whether our client's Charter rights were breached due to unreasonable delay.
Result: Mr. Mines was able to provide information to Crown counsel that ultimately caused Crown  to proceed against our client as the owner and not the driver of the vehicle. He plead to the lesser charge of Failing to Remain under the Motor Vehicle Act and received a fine, but no driving prohibition. No criminal record.

R. v. H.C. – Vancouver Provincial Court

Charges: Sexual Assault; Sexual Interference.
Issue: Whether the complainant held herself out to be at least 16 years of age and whether our client took reasonable steps to ascertain her age.
Result: Mr. Mines was able to provide information to Crown counsel on our client's behalf that established that our client did take reasonable steps to ascertain the complainant's age. In the result, Crown declined to approve any criminal charges. No criminal record.

R. v. A.L. – Vancouver Provincial Court

Charges: Tax Evasion (Excise Tax Act); Fraud Over $5000 x2.
Issue: Given our client's cooperation with the investigation, his civil settlement and his genuine remorse, whether a jail sentence was appropriate for this almost one million dollar tax evasion case.
Result: Mr. Mines was able to provide medical and financial information to Crown counsel that ultimately led Crown to proceed on the fraud charges rather than seeking an almost one million dollar mandatory fine under the Excise Tax Act. The Court accepted the joint submission for a 2 year less a day conditional sentence and probation. No jail.

R. v. A.R. – Vancouver Provincial Court

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. v. T.C. – Fraud Over $5000 Investigation

Charge: Fraud Over $5000.
Issue: Given the civil settlement of this $245,000 misappropriation from employer case, whether there was any interest in pursuing  a criminal investigation and prosecution.
Result: Mr. Johnson was able to negotiate a civil settlement and obtained a Final Release from the complainant. No criminal investigation occurred. No risk of jail or criminal prosecution.

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.