Updated December 2016
This How-To Brief outlines the steps to take to prepare and conduct a sentencing hearing. References to sections refer to sections of the Criminal Code.
1Determine qualification for diversion
- Consider whether the client might qualify for any local diversion program.
- Consider whether the client might qualify for drug treatment court.
- Consider whether the client might qualify for a peace bond.
- Consider whether the client might benefit by being dealt with in one of the specialy courts eg. Integrated Domestic Violence Court, Mental Health Court, Gladue Court etc.
2Determine available sentence
- Consider the availability of the following:
- absolute and conditional discharges (s. 730)
- alternative measures (s. 717)
- probation (s. 731 (1)(a)(b)) and terms (s. 732.1)
- fines (s. 734), including a fine-option program (s. 736) and the mandatory victim fine surcharge (s. 737)
- restitution orders (ss. 73–741.1)
- Consider the following options:
- the place of incarceration (s. 743.1)
- methods available for serving sentence
- intermittent terms (s. 732)
- conditional sentences (ss. 742.1–742.7)
- temporary absence applications
3Determine Crown's position on sentence
- Consider whether
- there is anything the client could demonstrate to cause the Crown to soften its position
- a delay of the hearing would be advantageous to the client to allow the client to create mitigating circumstances such as paying restitution or attending appropriate
4Determine the appropriate range of sentence
- The following are some sources to supplement your research:
- weekly criminal bulletins
- Legal Aid Ontario LAW memoranda
- Canadian sentencing digests
- Sentencing: The Practitioners' Guide by Gary R. Clewley and Paul G. McDermott
- sentencing texts
- Where appropriate, prepare a casebook with complete texts of the cases (highlight or side-bar passages you propose to use). Use cases that are relevant to the jurisdiction in which the sentencing is taking p
- Make inquiries with respect to the sentencing judge's practices.
5Review ss. 720–729 of the Criminal Code regarding procedure and evidence
- In particular, the following should be considered:
- pre-sentence report, s. 721 (see also Step 6)
- victim impact statements, s. 722 (see also Step 7)
- submissions on facts, s. 723(1)
- power of court to require production of evidence, s. 723(3) and (4)
- offender's statement, s. 726
6Consider any mitigating or aggravating factors (s. 718.2)
Conduct of litigation
- early plea of guilt
- plea of guilt in face of significant triable issues
- in a contested trial, were some or all of the facts are admitted
Other penalties imposed
- pre-trial custody attributed to this offence
- restrictions placed upon the client pursuant to the release order
- loss of employment
- loss of licence if there was a driving offence
- increased insurance premiums from the driving offence
- if convicted for an alcohol-related offence or dangerous driving, consequences to the availability of insurance—many insurance policies do not cover the client's own losses
- loss of ability to travel
- loss of access to the accused's children
- absence of record
- absence of a related offence on the record
- time gap since the last offence
- record indicating client responded well to community supervision in the past
- first period of incarceration
- first penitentiary sentence
Facts of the offence
- the client's role in the offence
- offence was the result of a spontaneous event
- incident was an isolated occurrence
- absence of property loss
- absence of injuries
- full recovery from injuries
- motive, e.g., for property offences, the items obtained were necessities
- previous and/or subsequent positive relationship with the victim
- client's state of mind at the time of offence:
- mental illness short of not criminally responsible
- alcohol or drug involvement, particularly if addiction present
- client's cognitive limitations or emotional instability
Offence in general
- prosecution was a test case
- client voluntarily attended the police station
- client cooperated on arrest
- full restitution made or can be made in a reasonable time
- property recovered
- client completed volunteer work in lieu of restitution
- client made a donation to charity in lieu of restitution
- release orders:
- client complied with terms
- client refrained from further criminal activity while on release
- client took steps to address underlying issues that led to offence, e.g., counselling or joining appropriate support groups
- age - youthful offender
- health of client
- educational background
- employment history/potential
- special traits that would be useful in community service
- family/community support
- healthy family environment to which to return
- attitude with respect to offence - remorseful
- dependents and hardship caused to them as a result of a potential sentence
- potential for reform and rehabilitation
- lack of guidance and support in the family
- client subjected to abuse
- resource groups available to assist the client
- availability of medical/psychiatric assistance to the client
- more useful counselling/treatment in a provincial institution compared to a federal institution
- Aboriginal heritage
Conduct of litigation
- "Not guilty" plea—while not in itself an aggravating factor, in some cases it may be indicative of a lack of remorse
- client was on a judicial interim release, probation or parole or subject to weapons/firearm prohibition
- similar offence on record
- record reflects a pattern of criminal conduct or escalating criminal conduct
- record reveals that non-custodial or short custodial dispositions have failed to deter the client
Facts of the offence
- weapon used
- firearm used
- shots fired
- offence planned and premeditated
- offence occurred in a residential area, an area normally occupied by children
- actual result was contemplated by the client or should have been
- offence was sophisticated or an organized criminal enterprise
role of the client:
- client was the leader
- client purposely involved others of good character or young age in the offence
- offence committed/facilitated by a number of offenders
- abuse of alcohol or drugs by the client
- victim was a stranger
- offence was domestic in nature
- previous criminal acts involving the same victim
- physical injuries
- permanent injuries, physical or psychological
- gratuitous violence
- client was in a position of trust/authority
- victim's age
- more than one victim
- monetary loss
- property damage
- vulnerable victim
- motivated by racial prejudice, bias or sexual orientation
- hate crime
- act of revenge
- act of greed
Offence in general
- Nature of the crime is prevalent in the community
- client evaded authorities or resisted arrest
- client disposed of property to preclude restitution
- client has no prospect of making full restitution
- release orders:
- violation of a release order
- in the case of a lengthy pre-trial release, an absence of positive steps to address the problems that led to offence
- educational background
- pecuniary gain by the client
- attitude with respect to the offence (hostile, recalcitrant or denies guilt)
7Consider whether to order a pre-sentence report (s. 721)
- The following are practical considerations to ponder when deciding whether to order a pre-sentence report:
- Can counsel provide the court with letters and reports to alleviate the necessity for a report?
- Are witnesses available to provide positive input into the report?
- How will the client respond to the probation officer?
- How will the probation officer respond to the client?
- How will the delay that will be caused by obtaining the report affect the client?
- If a report is ordered, do the following:
- prepare a list of favourable witnesses and provide it to the probation office
- caution the client on the lack of privilege in the pre-sentence report
- consider whether it is appropriate to have the client defer all questions with respect to the offence to counsel, particularly after a trial
- attend court as soon as possible on the date of sentencing to obtain and review a copy of the pre-sentence report
- have the client review the report for any inaccuracies
- advise the court of any inaccuracies in the report
- if there is a negative report or inaccuracies, consider subpoenaing the probation officer for cross-examination
- consider providing evidence to supplement the pre-sentence report in the event it appears to be incomplete, cursory or biased
8Consider how best to deal with any victim impact statements (s. 722)
- See s. 722 to determine if the legislation permits a victim impact statement.
- In virtually all cases, counsel is best advised to seek to have the report filed instead of requiring viva voce evidence.
- Review the report to confirm that all material in the report is relevant and admissible on the sentencing hearing.
- Review the report with the client to confirm the information in the report is accurate.
- Counsel may wish to have viva voce evidence called where
- counsel has substantial evidence to refute comments in the report, and
- counsel determines that the client's position will be enhanced
9Prepare the client for the sentencing hearing
- Preparation for sentencing in many cases should commence with the initial interview, particularly in cases of substance abuse or anger management. Take steps to improve the position of the client in areas such as employment, education, substance abuse and anger management - perhaps suggest client enroll immediately in counselling programs.
- If entering a plea of guilty, enter into a plea comprehension discussion and seek written instructions
- the client understands the consequences of a plea
- the client understands the minimum/maximum penalty
- the client understands what ancillary orders might be ordered
- the client understands and admits all relevant facts
- the client is waiving right to trial
- the client wishes to plead guilty
- the client knows that the court is not bound by joint submissions
- the client is entering the plea voluntarily
- anything else counsel sees as advisable in the circumstances
- Review the advisability of the client making a statement if addressed by the court pursuant to s. 726.
- Obtain the names of and interview potential character witnesses.
- Consider having the client make restitution in advance of the sentencing.
- Consider having the client complete community service or counseling prior to sentencing.
- Consider having the client write a sincere letter of apology.
- Review and confirm the accuracy of the criminal record with the client.
- Consider whether a psychiatric assessment would assist.
- Seek instructions from the client with respect to ancillary orders such as obtaining DNA, firearms prohibitions, sex offender registry.
- Confirm the impact of various sentences on the client's immigration status and/or ability to travel internationally and obtain instructions. It may be necessary to seek an opinion from an immigration lawyer with respect to this issue.
10Prepare the evidence on sentencing
- Interview and prepare any witnesses who might testify in advance of the hearing date.
- If the client is going to say any thing at the hearing, review in advance exactly what issues the client wishes to address and how the client intends to address those issues with the court.
11Consider the preparation of books of authority and supporting documentation
- Prepare a book of authorities, copies of reports, copies of letters and any other documentation and serve on the court and the Crown in advance of the sentencing date.
12 Conduct the sentencing hearing
- Be prepared to make submissions related to:
- why the offence occurred
- What facts exist to diminish the likelihood of repeated conduct
- general deterrence, s. 718(b)
- specific deterrence, s. 718(b)
- prospects for rehabilitation, s. 718(d)
- Present as detailed a plan as possible for the client post sentencing.
- Consider whether to bring a constitutional challenge with respect to the mandatory victim fine surcharge.
- consider whether to challenge the legislation regarding enhanced credit for time served.
13Deal with post-sentencing matters
- Explain implications of the sentence to the client, including
- parole eligibility
- applications for pardon
- possibility of appeal
- issues dealing with property or forfeiture
- ancillary orders such as weapons prohibition, obtaining DNA
- victim fine surcharge