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CRIMINAL SENTENCING

Understanding Criminal Sentencing Options

For many, navigating the criminal justice system can be a confusing and emotional ordeal. For the accused, it is important to understand the criminal sentencing options available to Canadian criminal courts in order to ensure that you are making an informed decision with respect to your criminal charge. Keep reading to find out more about Canadian sentencing law. Specifically, learn about the alternative measures program, absolute and conditional discharge, suspended sentence and probation, and fines. Need help? Kahane Law Office, in Calgary, is able to help with your criminal law needs.

Purposes of Criminal Sentencing

Pursuant to s 718 of the Criminal Code (“Code”), the core purpose of sentencing is to further a peaceful, just and safe society. To meet that purpose, various criminal sentencing options exist. Under Canadian Law, there are six chief objectives of sentencing:

  • Denunciation – ensuring denunciation of the offender’s criminal actions;
  • Deterrence – dissuading the offender from repeating the offence in the future;
  • Rehabilitation – rehabilitating the offenders to reduce the likelihood of them committing an offence again;
  • Separation – separating offenders from contact with friends, family and the public to protect society and  to punish the offender;
  • Reparation – making the offender contribute back by paying fines and working in community service programs; and
  • Responsibility – allowing offenders the opportunity to sincerely think about the harmful impact of their actions.

Alternative Measures Program

The Alternative Measures Program (AMP) is a program generally available to individuals that have less than two offences on their criminal record and are charged with a summary (minor) offence. The program’s goal is to allow those charged with minor offences to avoid a criminal record. Upon completion of the AMP, the Crown will withdraw charges and the participant will not have a criminal record. Of the criminal sentencing options available, this is an ideal one for those that qualify.

Typically, accused charged with the following offences are eligible for AMP:

  • Theft under $5,000;
  • Mischief under $5,000;
  • Assault;
  • Fraud;
  • Possession of stolen property;
  • Taking a motor vehicle without consent;
  • Uttering a Forged document; and
  • Causing a disturbance.

To apply for the AMP, at the accused’s next court appearance, he or she may ask the Crown or Judge to hold the matter over for three weeks  for consideration for the AMP. In some instances, the Justice of the Peace at the Case Management Office (located on the fourth floor in the North Tower of the Calgary Courts Centre) may already know if the accused is eligible for the AMP.

Once accepted into the program, the accused gets a contact person in the mail who will assist with assigning him or her various tasks. These include things such as completing community service hours, paying restitution to remedy damages and donating to charity.

Absolute Discharge and Conditional Discharge

A discharge is a type of sentence decided by the Court after an individual is found guilty at trial or if they voluntarily enter a guilty plea. If a discharge is granted, a person is deemed not to have been convicted of a criminal offence. There are two types of discharges in Canada, an Absolute Discharge and a Conditional Discharge as defined by s 730 of the Code.

If granted an Absolute Discharge, a person is deemed not convicted immediately after sentencing. If a Conditional Discharge is granted, the accused is put on probation (usually for six to 18 months). On successful completion of the term of probation, the Conditional Discharge turns into an Absolute Discharge. When on probation, the individual must follow certain rules that address the accused’s conduct leading to the offence. Such conditions may include:

  • Abstaining from drug or alcohol use;
  • Refraining from entering specific places or buildings; or
  • Enrolling in certain treatment or counselling programs.

Absolute Discharges In Alberta

In contrast, an absolute discharge does not impose any conditions.

According to the Code, in order to be eligible for a discharge, there must be:

  1. No minimum penalty associated with the offence;
  2. A maximum penalty no greater than 14 years imprisonment; and
  3. Granting the discharge must be in the best interest of the accused and not contrary to the interests of the public.

A discharge may be available to offences such as Theft under $5,000, Fraud Under $5,000, Assault and, in addition, Mischief at the discretion of the sentencing Judge.

In R v MacFarlane, 1976 ALTASCAD 6, the Court set out a series of relevant factors when ascertaining whether to grant a discharge:

  • The severity of the offence;
  • The prevalence of the offence in the community;
  • The potential for the accused to gain at others’ expense;
  • Whether the offence relates to the value of a property;
  • Whether the offence involved calculated actions or committed impulsively; and
  • Whether the offence should be on the public record.

Notably, only when other criminal sentencing options would be disproportionately out of line for the accused would discharge be an appropriate disposition.

Suspended Sentence and Probation

In some cases, the Court may decide to put or suspend imposing a sentence and release the accused on probation for a defined length of time. When released on probation, an individual is no incarcerated but faces supervision by a probation officer and must follow all conditions outlined in a probation order. Unlike an Absolute Discharge or a Conditional Discharge, an individual under a suspended sentence receives a criminal conviction registered against them. Consequently, this means he or she has a criminal record.

Fine

A fine constitutes a penalty of an amount of money ordered by a Judge that the offender pays as a penalty for committing an offence. A fine may be imposed in combination with other penalties such as probation or imprisonment. It is important to understand that even the smallest fine, when imposed as a punishment for a criminal offence, will result in a criminal conviction and a criminal record as it involves the accused being found guilty at trial or voluntarily pleading guilty.

If an individual fails to pay a fine, the Government of Alberta may refuse to issue, renew or suspend a driver’s license or permit until the fine is paid. Finally, in severe cases, a person may face a term of imprisonment.

Help Understanding Criminal Sentencing Options

The law does not allow you to just pick which of the criminal sentencing options you want. Some are mandatory. Similarly, others only are available in specific situations. Having a criminal lawyer represent you to the court, may allow for negotiating in the criminal sentencing options open to you.

Jessica Buffalo, the criminal defence lawyer at Kahane Law Office in Calgary, can assist you with a myriad of criminal charges. Each case is fact dependent and the resolution depends on the facts and evidence of the offence. Consequently, if you or a loved one faces a criminal charge, contact our offices to book a consultation. You will find out what options and defences are available to you. We can be reached toll-free at 1-877-225-8817 (or 403-225-8810 locally in Calgary, Alberta), or email us directly here.