Criminal Law Notebook

Overview of Sentencing

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

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.[1]

In certain cases, a failure to hold the sentencing hearing in a timely manner may amount to a Charter breach under s. 11(b).[2]

  1. ↑ Section 720(1)
  2. ↑ see Right to a Trial Within a Reasonable Time

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)

Note up: 720(1) and (2)

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]

  1. ↑ s. 723(1); R v Digiacomo, 2002 BCCA 444 (CanLII), 172 BCAC 22, per Thackray JA
  2. ↑ R v Jackman, 1996 CanLII 11080 (NL CA), [1996] NJ No 107 (NLCA), per Mahoney JA (It “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]

  1. ↑ 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.")
  2. ↑ R v Jones, 2012 ONCA 609 (CanLII), per curiam, at para 10
  3. ↑ 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 to 167

"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."[1] Failure to do so will result in a reversible sentence if one or more of the following errors exist:[2]

  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."
  1. ↑ R v Nahanee, 2022 SCC 37 (CanLII), per Moldaver J, at para 4
  2. ↑ Nahanee, ibid., at para 4

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)

Note up: 726

Weight at sentencing

While the allocution is not normally part of sentencing analysis, it can be considered.[1] This can include consideration of the lack of real remorse or concern for the victim.[2]

Failure to Offer

Failure to allow the accused to speak will not invalidate the sentence if it is an inadvertent slip or error.[3]

The court may consider relevant information in sentencing, including the representations of the accused.[4]

Young Offenders

There is no equivalent right of allocution under the YCJA.[5]

  1. ↑ e.g. R v Dubinksy, 2018 ONCA 645 (CanLII), per curiam
  2. ↑ e.g. R v Ogbamichael, 2014 ONSC 1693 (CanLII), per Trotter J, at para 10
  3. ↑ R v Senek, 1998 CanLII 17680 (MB CA), 130 CCC (3d) 473, per Lyon JA
    R v Holub and Kufrin, 2002 CanLII 44911 (ON CA), [2002] OJ No 579, per MacPherson JA
    R v Haug, 2002 SKCA 49 (CanLII), 219 Sask R 276, per Tallis JA
    R v Legault, 2005 CanLII 46625 (ON CA), [2005] OJ No 5380 (CA), per curiam, at para 5
  4. ↑ s. 726.1
  5. ↑ R v DA, 2015 ONSC 701 (CanLII), per J, at para 11 ("From a plain reading of these provisions under both Acts it is clear that a the youth justice court is not required to ask whether the offender has anything to say, however she is required to consider everything presented to her as set out in s. 42(1) of the YCJA before imposing 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.[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 (CanLII), (DOJ)

Note up: 728

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 (CanLII), (DOJ)

Note up: 726.2

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]

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.[9]

  1. ↑ R v Jones, 2012 ONCA 609 (CanLII), per curiam, at para 10
  2. ↑ see R v Hood, 2011 ABCA 169 (CanLII), 505 AR 243, per Martin JA, at para 15
    R v Keough, 2012 ABCA 14 (CanLII), 281 CCC (3d) 476, per Slatter JA, at paras 19 to 20 and 51 to 57
  3. ↑ s. 726.2
  4. ↑ R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, at para 18
    see Concurrent and Consecutive Sentences
  5. ↑ CAM, ibid., at para 18
  6. ↑ CAM, ibid., at para 18
  7. ↑ CAM, ibid., at para 18
  8. ↑ R v Knott, 2012 SCC 42 (CanLII), [2012] 2 SCR 470, per Fish J, at para 67
  9. ↑ see s. 726.3 and Role of the Victim and Third Parties

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Overview_of_Sentencing&oldid=95649"