Overview of Sentencing: Difference between revisions
m Text replacement - "<Br>" to "<br>" |
m Text replacement - "(R v [A-Z][a-z]+)," to "''$1''," |
||
| Line 24: | Line 24: | ||
{{reflist|2}} | {{reflist|2}} | ||
==Submissions of counsel== | ==Submissions of counsel== | ||
Both the Crown and Defence are permitted to make submissions to facts for consideration.<ref>s. 723(1); R v Digiacomo, [http://canlii.ca/t/1dwt7 2002 BCCA 444] (CanLII){{perBCCA|Thackray JA}}</ref> However, submissions themselves do not constitute evidence.<ref> R v Jackman, [http://canlii.ca/t/2f139 1996 CanLII 11080] (NL CA), [1996] N.J. No. 107 (NLCA){{perNLCA|Mahoney JA}} (“cannot be over-emphasized that, in making submissions to Court, counsel are not giving evidence but rather making argument in support of their respective submissions.”)</ref> | Both the Crown and Defence are permitted to make submissions to facts for consideration.<ref>s. 723(1); ''R v Digiacomo'', [http://canlii.ca/t/1dwt7 2002 BCCA 444] (CanLII){{perBCCA|Thackray JA}}</ref> However, submissions themselves do not constitute evidence.<ref> ''R v Jackman'', [http://canlii.ca/t/2f139 1996 CanLII 11080] (NL CA), [1996] N.J. No. 107 (NLCA){{perNLCA|Mahoney JA}} (“cannot be over-emphasized that, in making submissions to Court, counsel are not giving evidence but rather making argument in support of their respective submissions.”)</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 34: | Line 34: | ||
The sentencing judge should "explain the basis" of giving a sentence above the Crown's position.<ref> | The sentencing judge should "explain the basis" of giving a sentence above the Crown's position.<ref> | ||
R v Jones, [http://canlii.ca/t/fsqtm 2012 ONCA 609] (CanLII){{TheCourtONCA}}{{at|10}}<br> | ''R v Jones'', [http://canlii.ca/t/fsqtm 2012 ONCA 609] (CanLII){{TheCourtONCA}}{{at|10}}<br> | ||
</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
see ''R v RB'', [http://canlii.ca/t/gx405 2017 ONCA 74] (CanLII), [2017] OJ No 377{{TheCourtONCA}}<br> | see ''R v RB'', [http://canlii.ca/t/gx405 2017 ONCA 74] (CanLII), [2017] OJ No 377{{TheCourtONCA}}<br> | ||
R v Hagen, [http://canlii.ca/t/fp3r2 2011 ONCA 749] (CanLII), [2011] OJ No 5365{{TheCourtONCA}}{{at|5}}<br> | ''R v Hagen'', [http://canlii.ca/t/fp3r2 2011 ONCA 749] (CanLII), [2011] OJ No 5365{{TheCourtONCA}}{{at|5}}<br> | ||
R v Menary, [http://canlii.ca/t/ftc37 2012 ONCA 706] (CanLII), [2012] OJ No 4957{{TheCourtONCA}}{{at|3}}<br> | ''R v Menary'', [http://canlii.ca/t/ftc37 2012 ONCA 706] (CanLII), [2012] OJ No 4957{{TheCourtONCA}}{{at|3}}<br> | ||
R v Grant, [http://canlii.ca/t/gt2tw 2016 ONCA 639] (CanLII), [2016] OJ No 4419{{perONCA|Laskin JA}}, at paras 164-167<br> | ''R v Grant'', [http://canlii.ca/t/gt2tw 2016 ONCA 639] (CanLII), [2016] OJ No 4419{{perONCA|Laskin JA}}, at paras 164-167<br> | ||
</ref> | </ref> | ||
| Line 60: | Line 60: | ||
R v Holub and Kufrin, [2002] OJ No 579 (Q.L.), [http://canlii.ca/t/1dtkp 2002 CanLII 44911] (ON CA){{perONCA|MacPherson JA}}<br> | R v Holub and Kufrin, [2002] OJ No 579 (Q.L.), [http://canlii.ca/t/1dtkp 2002 CanLII 44911] (ON CA){{perONCA|MacPherson JA}}<br> | ||
R v Haug [http://canlii.ca/t/4t59 2002 SKCA 49] (CanLII){{perSKCA|Tallis JA}}<br> | R v Haug [http://canlii.ca/t/4t59 2002 SKCA 49] (CanLII){{perSKCA|Tallis JA}}<br> | ||
R v Legault, [2005] OJ No 5380 (C.A.), [http://canlii.ca/t/1m6m1 2005 CanLII 46625] (ON CA){{TheCourtONCA}} at para 5<br> | ''R v Legault'', [2005] OJ No 5380 (C.A.), [http://canlii.ca/t/1m6m1 2005 CanLII 46625] (ON CA){{TheCourtONCA}} at para 5<br> | ||
</ref> | </ref> | ||
| Line 70: | Line 70: | ||
==Judgement on Sentence== | ==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.<ref> | 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.<ref> | ||
R v Jones, [http://canlii.ca/t/fsqtm 2012 ONCA 609] (CanLII){{TheCourtONCA}} at para 10</ref> | ''R v Jones'', [http://canlii.ca/t/fsqtm 2012 ONCA 609] (CanLII){{TheCourtONCA}} at para 10</ref> | ||
It is also recommended that the judge give counsel an opportunity to make further submissions.<ref> | It is also recommended that the judge give counsel an opportunity to make further submissions.<ref> | ||
see R v Hood, [http://canlii.ca/t/flqvp 2011 ABCA 169] (CanLII){{perABCA|Martin JA}} at para 15<br> | see ''R v Hood'', [http://canlii.ca/t/flqvp 2011 ABCA 169] (CanLII){{perABCA|Martin JA}} at para 15<br> | ||
R v Keough, [http://canlii.ca/t/fplpz 2012 ABCA 14] (CanLII){{perABCA|Slatter JA}} at paras 19 to 20 and 51 to 57<br> | ''R v Keough'', [http://canlii.ca/t/fplpz 2012 ABCA 14] (CanLII){{perABCA|Slatter JA}} at paras 19 to 20 and 51 to 57<br> | ||
</ref> | </ref> | ||
| Line 116: | Line 116: | ||
'''Explanation of Sentence'''<br> | '''Explanation of Sentence'''<br> | ||
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.<ref> | 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.<ref> | ||
R v Knott, [2012] 2 SCR 470, [http://canlii.ca/t/fs68p 2012 SCC 42] (CanLII){{perSCC|Fish J}}{{at|67}}<br> | ''R v Knott'', [2012] 2 SCR 470, [http://canlii.ca/t/fs68p 2012 SCC 42] (CanLII){{perSCC|Fish J}}{{at|67}}<br> | ||
</ref> | </ref> | ||
Revision as of 09:44, 13 January 2019
Guilty plea or Conviction
A sentencing hearing is to be commenced "as soon as practicable" after the point where a conviction has been entered.[1]
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
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.[1] However, submissions themselves do not constitute evidence.[2]
- ↑ s. 723(1); R v Digiacomo, 2002 BCCA 444 (CanLII), per Thackray JA
- ↑ R v Jackman, 1996 CanLII 11080 (NL CA), [1996] N.J. No. 107 (NLCA), per Mahoney JA (“cannot be over-emphasized that, in making submissions to Court, counsel are not giving evidence but rather making argument in support of their respective submissions.”)
Positions of the Parties
The judge is required in his decision on sentence, consider the "submissions" of counsel.[1]
The sentencing judge should "explain the basis" of giving a sentence above the Crown's position.[2]
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.[3]
- ↑ Section 726.1 ("In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.")
- ↑
R v Jones, 2012 ONCA 609 (CanLII), per curiam, at para 10
- ↑
see R v RB, 2017 ONCA 74 (CanLII), [2017] OJ No 377, per curiam
R v Hagen, 2011 ONCA 749 (CanLII), [2011] OJ No 5365, per curiam, at para 5
R v Menary, 2012 ONCA 706 (CanLII), [2012] OJ No 4957, per curiam, at para 3
R v Grant, 2016 ONCA 639 (CanLII), [2016] OJ No 4419, per Laskin JA, at paras 164-167
Accused Addressing the Court
At the end of the submissions by counsel, the accused is entitled to make comments to the court:
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
Failure to allow the accused to speak will not invalidate the sentence if it is an inadvertent slip or error.[1]
The court may consider relevant information in sentencing, including the representations of the accused.[2]
- ↑
R v Senek (1998), 130 CCC (3d) 473, 1998 CanLII 17680 (MB CA), per Lyon JA
R v Holub and Kufrin, [2002] OJ No 579 (Q.L.), 2002 CanLII 44911 (ON CA), per MacPherson JA
R v Haug 2002 SKCA 49 (CanLII), per Tallis JA
R v Legault, [2005] OJ No 5380 (C.A.), 2005 CanLII 46625 (ON CA), per curiam at para 5
- ↑ s. 726.1
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.[1]
It is also recommended that the judge give counsel an opportunity to make further submissions.[2]
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.[3]
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
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".[4]
If they are all concurrent there is no need to consider totality. [5] Otherwise, the judge should sentence for each offence, applying standard sentencing principles.[6]
- Where there are consecutive sentences, the judge should look at the total sentence to ensure that it satisfies the principle of proportionality.[7]
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
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.[8]
- ↑ R v Jones, 2012 ONCA 609 (CanLII), per curiam at para 10
- ↑
see R v Hood, 2011 ABCA 169 (CanLII), per Martin JA at para 15
R v Keough, 2012 ABCA 14 (CanLII), per Slatter JA at paras 19 to 20 and 51 to 57
- ↑ s. 726.2
- ↑
R v CAM, [1996] 1 SCR 500, 1996 CanLII 230 (SCC), per Lamer CJ, at para 18
see Concurrent and Consecutive Sentences - ↑
CAM, ibid. at para 18
- ↑
CAM, ibid. at para 18
- ↑
CAM, ibid. at para 18
- ↑
R v Knott, [2012] 2 SCR 470, 2012 SCC 42 (CanLII), per Fish J, at para 67