Sentencing Brief (Generic)

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PRECEDENT TERMS OF USE

All forms, templates and precedents, including anything found on this page, can be used without the need for any attribution.

Briefs

Cover of Brief

C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL] COURT OF [PROVINCE]

BETWEEN:

HER MAJESTY THE QUEEN

– and –

[ACCUSED NAME]




CROWN/ACCUSED SENTENCING BRIEF




[first party name]
[first party title]
[address]
[address]
[address]
[address]
Tel: (xxx) xxx-xxxx
Fax: (xxx) xxx-xxxx
Email: xxx@xxxxxx

Counsel for Her Majesty the Queen

[second party name]
[second party title]
[address]
[address]
[address]
[address]
Tel: (xxx) xxx-xxxx
Fax: (xxx) xxx-xxxx
Email: xxx@xxxxx

Counsel for the Accused

Table of Contents

TABLE OF CONTENTS(e)



Page
PART I: OVERVIEW
X
A.

X
i.

X
PART II: AGREED FACTS AND OTHER EVIDENCE
X
PART III: POSITIONS OF THE PARTIES
X
PART IV: GENERAL SENTENCING PRINCIPLES
X
PART V: OBJECTIVES OF SENTENCING IN THIS CASE
X
PART VI: AGGRAVATING AND MITIGATING FACTORS IN THIS CASE
X
PART VI-A: JOINT RECOMMENDATIONS
X
PART VI-B: AVAILABLE DISPOSITIONS
X
PART VII: DISCUSSION ON APPROPRIATE SENTENCE
X
PART VIII: ANCILLARY ORDERS
X
PART IX: CONCLUSIONS
X
PART X: TABLE OF AUTHORITIES
X
Body of Brief
PART I: OVERVIEW(e)

[X] On [date], the accused [plead/was found] guilty to the commission of the following offence(s) between [date]. Specifically that he did:

(1) ... commit the offence ... contrary to s. ... of the Criminal Code.

(2) ... commit the offence of ... contrary to s. ... of the Criminal Code.

The Crown elected to proceed by indictment/summary conviction on the hybrid offences.

[X] It is the Crown/Defence position that a fit and proper sentence for the offences charged are as follows:

Count # Section Offence Name Date Range Min. Penalty Max. Penalty Sentence Requested
(Consecutive or Concurrent)
Ancillary Order(s)
1
2
Global Sentence [total duration]
Global Sentence Factoring in Totality [total duration]

[X] The terms of the conditional sentence order should be as follows:

  • Statutory conditions required by the Code.
  • [list of terms and conditions]

[X] The terms of the probation order should be as follows:

  • Statutory conditions required by the Code.
  • [list of terms and conditions]

[X] The terms of the ancillary orders should be as follows:

  • [list optional terms, including duration of ancillary orders]

[X] We decline to seek a [DNA order, SOIRA Order, etc] < * Crown brief only >

[X] The remainder of these written submissions will be organized into the following Parts:

  • PART II: Agreed Facts And Other Evidence
  • PART III: Positions Of The Parties
  • PART IV: General Sentencing Principles
  • PART V: Objectives Of Sentencing In This Case
  • PART VI: Aggravating And Mitigating Factors In This Case
  • PART VI-A: Joint Recommendations
  • PART VI-B: Available Dispositions
  • PART VII: Discussion On Appropriate Sentence
  • PART VIII: Ancillary Orders
  • PART IX: Conclusions
PART II: AGREED FACTS AND OTHER EVIDENCE(e)

A. Circumstances of the Offence

[X] The agreed facts for the purpose of sentencing are as follows:

[review narrative of allegations agreed upon]
or

[X] The agreed facts for the purpose of sentencing are set out in the Agreed Statement of Facts that will be tendered at the sentencing hearing.

or

B. Personal Circumstances


i. Reports and Assessments

[X] Once a [guilty plea/conviction] was entered, the Court ordered a Pre-Sentence Report (PSR) at the request of defence. The PSR [is still pending/has been received on [date] ]. At the request of [defence/crown], a [other type of report such as a pre-sentence sexual risk assessment, Gladue report, etc] was ordered. That report [is still pending/has been received on [date] ].

C. Victim Impact Statements

[X] The Crown made referrals on [date] to Victim Services for the following victim(s):

[X] Further efforts were made to contact the victims to notify them of their rights to file the victim impact statements and read them in court. This included ... [describe additional efforts, personal contact]

[X] Victim services informs the Crown that...

[X] As of this writing, it is unknown whether any victims have filed victim impact statements.

or

[X] We are in receipt of the written victim impact statements for [list persons]. We are of the view that the content conforms with the requirements of s. 722, except as follows:

  • [list all instances where the VIS does not conform with 722, including attacking character, assert facts, recommend a sentence, mischaracterize the law or facts, or are inflamatory]


D. Other Evidence

[X] The Crown seeks to rely on the following exhibits that will be tendered at the hearing either by consent or through material witness(es):

  • [list documents, reports, etc. that the Crown seeks to tender]

[X] The defence seeks to rely on the following exhibits that will be tendered at the hearing either by consent or through material witness(es).

  • [list documents, reports, etc. that the defence seeks to tender]
PART III: POSITIONS OF THE PARTIES(e)

[X] The parties are not in agreement on what the fit and proper sentence would be for this accused, including the appropriate form of disposition, duration of custody, the terms of probation, and ancillary orders.

OR

[X] Over the course of the proceedings the parties have negotiated a potential resolution to this matter. There is agreement on particular charges and facts to be admitted. The parties have agreed on what is believed to be a suitable sentence, subject to the Court's approval in an Anthony-Cook hearing.


PART IV: GENERAL SENTENCING PRINCIPLES
(e)

[X] The exercise of sentencing an offender is one of determining a fit and proper sentence for the particular offender. This process requires a high degree of individualizing and tailoring of the sentence to fit the particular accused. Accordingly, the process must be flexible.

[X] Justice LeBel in R v LM, [2008] 2 SCR 163, 2008 SCC 31 (CanLII) gives some recommendation on the proper approach (para. 17):

[17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46 (CanLII), at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 (CanLII), at para. 82). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code:
- the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C.) (see Appendix);
- the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and
- the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).

A. Purpose and Principles of Sentencing

[X] The objective of a sentencing judge, framed most broadly, is to ensure that the sentence ordered is "just and appropriate". A just and appropriate sentence is one that satisfies the fundamental purposes of a sentence as laid out by the Criminal Code. Section 718 states the fundamental purpose of sentencing is as follows:

Purpose
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6

[X] There will be heightened importance and emphasis on particular objectives for any particular case. No single objective can ever trump another completely. These objectives must be weighed against each other in light of what the court would consider the optimal way to protect the local community (see R v Nasogaluak, [2010] 1 SCR 206).

B. Rehabilitation

[X] The principle of rehabilitation is relevant in all sentencing and remains one of the main objectives of the process. As Justice Wagner (as he was) stated in R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para 4:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

C. Proportionality

[X] The principle of proportionality is of such importance that it was codified in s. 718.1 as the fundamental principle to the sentencing process. The section states:

Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.

The importance proportionality plays in the sentencing process is justified on the basis that a just sentence is necessarily one that is proportionate to the gravity of the offence and the responsibility of the offender. In R v Ipeelee, 2012 SCC 13 (CanLII) at para 37 Justice Lebel explained the role proportionality:

[37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533:
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

D. Parity

[X] Section 718.2(b) directs that sentencing judges must ensure that the accused's sentence "be similar to sentences imposed on similar offences committed in similar circumstances;". This is the principle of parity and is usually addressed through consideration of the range of past sentences where similar offenders have committed similar offences in similar circumstances. The Court should also be sensitive to the particular needs of the local community (see Nasogaluak, Lacasse).

[X] The purpose behind the principle is to ensure fairness as between similarly situated cases. It does not, however, override the individualized nature of sentencing, nor does it prohibit considerable disparity between accused so long as the sentence ordered is proportionate to the gravity of the offence and moral culpability of the offender. (see R v CAM, [1996] 1 SCR 500) Proportionality should generally prevail over parity (see R v Lacasse, [2015] 3 SCR 1089 at para 92). Accordingly, review of prior sentencing case law can be of assistance and may even provide a shortcut to calibrating the right sentence, but in all cases, the ultimate sentence must be justified as proportionate, first and foremost.

E. Restraint

[X] The principle of restraint is codified in both s. 718.2(d) and (e), stating that:

718.2...
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16.

[X] The principle ensures that sentences are just and fair in the eyes of the public by imposing upon courts a duty to limit the use of incarceration by ensuring that courts consider the least intrusive sentence that achieves the necessary sentencing objectives and only uses incarceration as an option of last resort.

F. Concurrent vs Consecutive Sentences [assuming multiple offences charged]

where

[X] Section 718.3(4)(b) grants sentencing judges the discretion to determine whether to order the sentences for multiple offences before them be served concurrently or consecutively to each another. It states as follows:

781.3...
Cumulative punishments
(4) The court that sentences an accused shall consider directing
(a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and
(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when
(i) the offences do not arise out of the same event or series of events,
(ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or
(iii) one of the offences was committed while the accused was fleeing from a peace officer.

[X] It is submitted that ...

G. Totality (assuming multiple offences charged]

[X] The sentencing principle of totality is designed to prevent the ordering of "unduly long or harsh" sentences that result from the combination of consecutive sentences in the course of the sentence calculation. The principle is founded and guided in the principle of proportionality which requires that the global sentence remains proportionate to the gravity of the offence and the degree of responsibility of the offender. (see R v Hutchings, 2012 NLCA 2 (CanLII))

[X] This common law principle of totality was codified into s. 718.2(c) of the Code as a mandatory sentencing consideration:

Obligations of court
718.2 A court that imposes a sentence shall also take into consideration the following principles:...
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;...

[X] On a given case, the sentencing judge should consider factors including:

  • the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;
  • the number and gravity of the offences involved;
  • the offender’s criminal record;
  • the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;
  • such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility.

[X] Should the combined sentence prove to be excessive, the sentencing judge must then determine "the extent to which the combined sentence should be reduced to achieve a proper totality". This can be done by altering the sentence for individual counts to run concurrently rather than consecutively, or simply reduce the length of individual sentences.

[X] In making the necessary changes to the sentence, the sentencing judge must be mindful to identify:

  • the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;
  • the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and
  • the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced.

[X] In our case, it is submitted that ...

PART V: OBJECTIVES OF SENTENCING IN THIS CASE
(e)
[This section will usually be customized to the particular offence]

[X]

A. Purpose of Criminalization of Conduct

[X]

B. Objectives to be Emphasized

[X]

C. Range of Sentence

[X]


PART VI: AGGRAVATING AND MITIGATING FACTORS IN THIS CASE(e)
[This section will usually be customized to the particular offence]

[X]

A. Gravity of Conduct

[X]

B. Sophistication of the Offence

[X]

C. Vulnerability of Victim

[X]

D. Responsibility and Moral Culpability of the Offender

[X]

E. Guilty Plea, Remorse, and Acceptance of Responsibility

[X]

F. Age, Character, and Risk to Re-Offend

[X]

G. Addiction and Mental Health

[X]

H. Prior Criminal Record and Repeat Offenders

[X]

I. Effect on Employment, Family, and Immigration

[X]

J. Prospects of Rehabilitation

[X]

K. Totality

[X]

L. Remand Credit

[X]

PART VI-A: JOINT RECOMMENDATIONS(e)

[X] A joint recommendation that is presented to the Court can only be adopted where the court is satisfied, after hearing all the evidence and submissions, that the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. This "public interest test" was most recently outlined in R v Anthony-Cook, 2016 SCC 43. Justice Moldaver, writing for the Court, outlined the test as follows:

[32] Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. ...
[33] In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”. And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, at para. 56 (CanLII), when assessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”.
[34] In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason, as I shall explain.

[X] Justice Moldaver described the importance of having a high threshold to reject a joint recommendation:

[41] But as I have said, for joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. Too much doubt and the parties may choose instead to accept the risks of a trial or a contested sentencing hearing. The accused in particular will be reluctant to forgo a trial with its attendant safeguards, including the crucial ability to test the strength of the Crown’s case, if joint submissions come to be seen as an insufficiently certain alternative.

[X] Under the Anthony-Cook approach to a joint recommendation, an added obligation is placed on both counsel to provide sufficient information about the offence, offender, and circumstances of the proceedings that brought about the agreement:

[53] Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown’s case, a very lenient sentence might not be contrary to the public interest. On the other hand, if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system.
...
[55] This is not to say that counsel must inform the trial judge of “their negotiating positions or the substance of their discussions leading to the agreement” (R. v. Tkachuk, 2001 ABCA 243 (CanLII), 293 A.R. 171, at para. 34). But counsel must be able to inform the trial judge why the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. If they do not, they run the risk that the trial judge will reject the joint submission.
...
[57] A thorough justification of the joint submission also has an important public perception component. Unless counsel put the considerations underlying the joint submission on the record, “though justice may be done, it may not have the appearance of being done; the public may suspect, rightly or wrongly, that an impropriety has occurred” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at p. 73).

[X] Should the Court be inclined to reject the joint recommendation, the sentencing judge cannot simply declare the agreement inappropriate and proceed to determine a fit and proper sentence. The Court must provide notice to counsel that there are concerns and invite counsel to make further submissions, invite a potential withdraw of guilty plea, and only after that must give "clear and cogent" reasons for the rejection.

[58] Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, “fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the . . . judge’s concerns before the sentence is imposed” (G.W.C., at para. 26). The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case.
[60] Finally, trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable, and may assist them in the resolution of future cases. Reasons will also facilitate appellate review.
A. Benefits to Crown and Concessions by Defence

[X]

B. Repute to Administration of Justice

[X]

C. Not Contrary to the Public Interest

[X]

PART VI-B: AVAILABLE DISPOSITIONS(e)

A.1. Availability of Discharges

[X]

Conditional and absolute discharge
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
Period for which appearance notice, etc., continues in force
(2) Subject to Part XVI, where an accused who has not been taken into custody or who has been released from custody under or by virtue of any provision of Part XVI pleads guilty of or is found guilty of an offence but is not convicted, the appearance notice, promise to appear, summons, undertaking or recognizance issued to or given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.
...
Where person bound by probation order convicted of offence
(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.
R.S., 1985, c. C-46, s. 730; 1995, c. 22, s. 6; 1997, c. 18, s. 141; 2003, c. 21, s. 17.


A.2. Availability of Conditional Sentences

[X]

Imposing of conditional sentence
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 144 (prison breach),
(ii) section 264 (criminal harassment),
(iii) section 271 (sexual assault),
(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons — material benefit),
(vi) section 281 (abduction of person under fourteen),
(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
(x) section 349 (being unlawfully in a dwelling-house), and
(xi) section 435 (arson for fraudulent purpose).
...
1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1; 2012, c. 1, s. 34.
PART VII: DISCUSSION ON APPROPRIATE SENTENCE
(e)
[This section is where discussion and analysis can be done in detail]

[X]

A. Gravity of the Offence

[X]

B. Circumstances of the Offender

[X]

PART VIII: ANCILLARY ORDERS(e)

A. Restitution Orders

[X] As made out by the facts, the total loss to the victims was in the amount of

[X] Should restitution order be found suitable we should ask that the order be payable to persons and in the amounts found as indicated here:

# Victim Name Contact Amount
1
[name] [contact info] [amount]
2

A.1. Fine-in-Lieu of Restitution Orders

[X] The

Order of forfeiture of property
462.37 (1) Subject to this section and sections 462.39 to 462.41, if an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on or discharging the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime obtained through the commission of the designated offence, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

[X] The meaning of "designated offence" is defined in s. 462.3 as:


i. Purpose of Fine-in-Lieu

[X]

10 The sentence imposed for an offence under Part XII.2 on proceeds of crime consists of two elements: the penalty for committing a designated offence (s. 462.3(1)), and forfeiture of the proceeds of crime (s. 462.37(1)). The new provisions are in addition to existing methods. The intention of Parliament is clear. Not only must the act itself be punished, but it must not benefit the offender. Parliament’s purpose in doing this is to ensure that crime does not pay. Although the appeal concerns the discretion of a court that imposes a fine instead of forfeiture, the objective of the primary provision must be correctly established for it to be possible to identify the objective of the provision authorizing this sentence.
...
16 Parliament’s intention in enacting the forfeiture provisions was to give teeth to the general sentencing provisions. While the purpose of the latter provisions is to punish an offender for committing a particular offence, the objective of forfeiture is rather to deprive the offender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future. The severity and broad scope of the provisions suggest that Parliament is seeking to avert crime by showing that the proceeds of crime themselves, or the equivalent thereof, may be forfeited.
R v Lavigne, 2006 SCC 10
ii. Does Totality Factor into Fine-in-Lieu Order

[X]

25 The amicus curiae argues that the effect of imposing a fine without regard to the general principles of sentencing is to punish the offender twice. What that argument fails to consider is that those principles are not all disregarded and that a fine instead of forfeiture is seen as a separate component of the sentence. While such an order is technically part of the sentence, it is nevertheless distinguished by the fact that its purpose is to replace the proceeds of crime. It is not regarded as punishment specifically for the designated offence.
Lavigne
iii. Possession of Proceeds vs Control of Proceeds

[X]

[50] Second, the appellants submit that the trial judge erred by imposing fines in lieu of forfeiture in the absence of proof that they received the funds that served as the basis for the fine amounts, $423,580.41 for Mr. Khatchatourov and $71,954.63 for Ms. Reznik. They argue that there was insufficient evidence that the appellants had possession or control over the funds, and therefore that the Crown had not proved the funds were “property” as defined in s. 2, and for the purpose of s. 462.37(3), of the Criminal Code.
[51] I do not accept this submission. Mr. Khatchatourov’s counsel said this at the sentence hearing:
[C]ertainly it is open to Your Honour to say: “Well, look, these cheques were made payable to him. Who knows what happened from there but it’s a reasonable inference that he got that money or had control of that money”….
[52] This common sense concession is consistent with the evidence, which was that Mr. Khatchatourov and Ms. Reznik received cheques, made out in their names, from the fraudulent transactions totalling the precise amounts of the two fines. Absent some evidence (for example, testimony from the appellants at their sentence hearing) that the appellants did not cash the cheques and receive the funds, I see no reason to impose a duty on the Crown to take additional steps (for example, a tracing exercise) to try to obtain further proof that the appellants actually received the money generated by their frauds. Their receipt of the cheques is enough. Even in the increasingly complicated world of Canadian criminal law, some things are obvious.
Khatchatourov, 2014 ONCA 464
iv. Fine-in-Lieu Order Concurrent to Restititon

[X] It is permissible for the court to make an order of restitution

v. Duration and Default Time for Fine-in-Lieu Order

[X]

Section Imprisonment Fine Amount
462.37(4)(a)(i) 0 to 6 months 0 to $10,000
462.37(4)(a)(ii) 6 to 12 months $10,000 to $20,000
462.37(4)(a)(iii) 12 to 18 months $20,000 to $50,000
462.37(4)(a)(iv) 18 to 24 months $50,000 to $100,000
462.37(4)(a)(v) 2 to 3 years $100,000 to $150,000
462.37(4)(a)(vi) 3 to 5 years $150,000 to $1,000,000
462.37(4)(a)(vii) 5 to 10 years $1,000,000 or more

B. Forfeiture Orders

[X]

C. DNA Orders

[X]

D. SOIRA Orders

[X]

PART IX: CONCLUSIONS(e)

[X] Based on the foregoing and as supplemented by oral submissions, the [Crown / defence] beleieve a fit and proper sentence is as follows:

Count # Section Offence Name Date Range Min. Penalty Max. Penalty Sentence Requested
(Consecutive or Concurrent)
Ancillary Order(s)
1
2
Global Sentence [total duration]
Global Sentence Factoring in Totality [total duration]

[X] We are also recommending the following ancillary orders:

[list the orders requested and their duration]

[X] The Crown is declining to seek ... [discretionary orders that are not requested]

ALL OF WHICH IS RESPECTFULLY SUBMITTED

DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.


_________________________________
[Counsel's name]
[Counsel's title]


Table of Authorities

PART X: TABLE OF AUTHORITIES(e)



EXHIBITS

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CASE LAW

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R v ...
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LEGISLATION:

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SECONDARY SOURCES:

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WEBSITES:

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