Overview of Sentencing

This page was last substantively updated or reviewed January 2019. (Rev. # 95649)

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Guilty plea or Conviction

Timing

A sentencing hearing is to be commenced "as soon as practicable" after the point where a conviction has been entered.

In certain cases, a failure to hold the sentencing hearing in a timely manner may amount to a Charter breach under s. 11(b).

Timing of Sentencing

Sectin 720 requires that sentencings occur "as soon as practicable" once guilt is found.

Sentencing proceedings

720 (1) A court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed.

Court-supervised programs

(2) The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program.
R.S., 1985, c. C-46, s. 720; 1995, c. 22, s. 6; 2008, c. 18, s. 35.

– CCC (CanLII), (DOJ)

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An exception to the requirement of a speedy sentencing is found in s. 720(2) when the Attorney General and the offender consent to an adjournment, and where the judge takes into account the interests of justice and the interests of any victims, for the purpose of a treatment program.

Submissions of counsel

Both the Crown and Defence are permitted to make submissions to facts for consideration. However, submissions themselves do not constitute evidence.

Positions of the Parties

The judge is required in his decision on sentence, consider the "submissions" of counsel.

The sentencing judge should "explain the basis" of giving a sentence above the Crown's position.

Where a judge decides to sentence the offender for a penalty greater than the penalty requested by the Crown, the judge must provide the parties with an opportunity to make further submissions.

"Jumping" the Crown Position

If a judge intends to impose a harsher sentence than that of the Crown they "should notify the parties and give them an opportunity to make further submissions." Failure to do so will result in a reversible sentence if one or more of the following errors exist:

1. "the appellant establishes that there was information they or the Crown could have provided to the sentencing judge that would have impacted the sentence;"
2. "the sentencing judge failed to provide adequate reasons for imposing the harsher sentence, thereby foreclosing meaningful appellate review; or
3. "the sentencing judge provided erroneous or flawed reasons for imposing the harsher sentence."

Accused Addressing the Court

At the end of the submissions by counsel, the accused is entitled to speak to the court. This is known as the "right of allocution":

Offender may speak to sentence

726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say.
R.S., 1985, c. C-46, s. 726; R.S., 1985, c. 27 (1st Supp.), s. 159, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 6.

– CCC (CanLII), (DOJ)

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Weight at sentencing

While the allocution is not normally part of sentencing analysis, it can be considered. This can include consideration of the lack of real remorse or concern for the victim.

Failure to Offer

Failure to allow the accused to speak will not invalidate the sentence if it is an inadvertent slip or error.

The court may consider relevant information in sentencing, including the representations of the accused.

Young Offenders

There is no equivalent right of allocution under the YCJA.

Judgement on Sentence

A judge, in deciding on a sentence, after hearing the recommendations from both Crown and Defence, may go above the range recommended by Crown counsel, but must do so after giving reasons for the sentence given.

It is also recommended that the judge give counsel an opportunity to make further submissions.

Upon deciding on a particular sentence the judge shall comply with s.570 and 806 requiring him to make a minute or memorandum of conviction and upon request, make a conviction order under Form 35 or 36. Further a warrant of committal, if applicable, will be made under Form 21 or 22.

When imposing a sentence, the court should state the terms of sentence, the reasons for sentence and the terms.

A single sentence is imposed upon multiple convictions the sentence will be valid as long as the sentence is justifiable on each count:

Sentence justified by any count

728 Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence.
R.S., 1985, c. C-46, s. 728; 1995, c. 22, s. 6.

– CCC (CanLII), (DOJ)

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It has been recommended that the following process be taken:

• The judge should begin by determining "whether any or all of the offences are to be served consecutively."

If they are all concurrent there is no need to consider totality. Otherwise, the judge should sentence for each offence, applying standard sentencing principles.

• Where there are consecutive sentences, the judge should look at the total sentence to ensure that it satisfies the principle of proportionality.

Reasons for Sentence

Reasons for sentence

726.2 When imposing a sentence, a court shall state the terms of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceedings.
1995, c. 22, s. 6.

– CCC (CanLII), (DOJ)

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Explanation of Sentence

Where the offender is already subject to a probation order at the time of sentence. The sentencing judge should remind them that the previous probation order is not automatically invalidated.

Notice to Victim

The sentencing judge is required to inquire of the Crown whether "reasonable steps" have been taken to determine if the victim wishes to know about the sentence imposed and its administration.

See Also

• Serving Sentences