Statutory Maximum Penalties

From Criminal Law Notebook
Jump to navigation Jump to search

General Principles

See also: Mandatory Minimum Penalties

The maximum available sentence for a given offence will be provided within the provisions defining the offence.

Given the distinction between summary offences and indictable offences, the maximum penalties for summary offences will always be less than indictable.

It is generally stated that the maximum penalty is not simply reserved for the "worst of the worst" offenders.[1] All relevant factors must be considered and should only be considered appropriate where the "offence is of sufficient gravity and the offender displays sufficient blameworthiness".[2]

To impose a maximum sentence it is necessary for the judge to take into account pre-sentence custody otherwise the sentence is effectively beyond the statutory maximum.[3]

  1. R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, per Fish J
    R v LM, 2008 SCC 31 (CanLII), per LeBel J
  2. R v Cheddesingh, 2004 SCC 16 (CanLII), per McLachlin CJ
  3. R v Severight, 2014 ABCA 25 (CanLII), 306 CCC (3d) 197, per curiam

Summary Conviction Penalties

Where an offence is described as punishable by "summary conviction", section 787(1) states the punishment will be a fine of no more than $5,000 and/or 2 years less a day jail unless the offence specifies otherwise.

General penalty

787 (1) Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.
[omitted (2)]
R.S., 1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s. 171; 2008, c. 18, s. 44; 2019, c. 25, s. 316.

CCC


Note up: 787(1)

Other available summary offence maximums include 18 months jail.[1]

However, under s. 735 where the accused is an organization, the summary conviction fine amount increases to $100,000.

On summary elections for hybrid offences, the court is bound by the maximum range set by parliament. However, the courts should not "scale up" or "scale down" the sentences due to the election.[2]

On September 19, 2019, s. 787 was amended by 2019, c. 25 to increase the maximum penalty to two years less a day, up from six months. All offences committed prior to September 19, 2019 will likely benefit from the lesser penalty.

  1. e.g. s. 253, 264.1
    Offences by Penalty
  2. R v Solowan, 2008 SCC 62 (CanLII), [2008] 3 SCR 309, per Fish J

Indictable Offence Penalties

The maximum for indictable offences will always be specified in the provisions. The code will specify a maximum of 2, 5, 10, 14 years jail or life.

Where the offence does not specify a maximum penalty s. 743 will deem the maximum penalty as 5 years.

Imprisonment when no other provision

743 Every one who is convicted of an indictable offence for which no punishment is specially provided is liable to imprisonment for a term not exceeding five years.
R.S., 1985, c. C-46, s. 743; 1992, c. 11, s. 16; 1995, c. 22, s. 6.

CCC


Note up: 743

The only offence within the Criminal Code that does not specify a maximum penalty is an offence under s. 462.33(11).[1]

Intimate Partner Violence

718.3
[omitted (1), (2), (3), (4), (5), (6) and (7)]

Maximum penalty — intimate partner

(8) If an accused is convicted of an indictable offence in the commission of which violence was used, threatened or attempted against an intimate partner and the accused has been previously convicted of an offence in the commission of which violence was used, threatened or attempted against an intimate partner, the court may impose a term of imprisonment that is more than the maximum term of imprisonment provided for that offence but not more than

(a) five years, if the maximum term of imprisonment for the offence is two years or more but less than five years;
(b) 10 years, if the maximum term of imprisonment for the offence is five years or more but less than 10 years;
(c) 14 years, if the maximum term of imprisonment for the offence is 10 years or more but less than 14 years; or
(d) life, if the maximum term of imprisonment for the offence is 14 years or more and up to imprisonment for life.

1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182; 2015, c. 23, s. 17; 2019, c. 25, s. 294.

CCC


Note up: 718.3(8)

This provision was introduced September 19, 2019 and would only apply to those offences committed after that date.