Download Introduction to Sentencing and Corrections

2015-05-30
Traditional Objectives of Sentencing
Introduction to
Sentencing and
Corrections
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retribution,
segregation,
rehabilitation, and
deterrence (general & specific)
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Political Perspectives on Sentencing
The Purpose of Sentencing
(According to Section 718 of the Criminal Code of Canada)
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Sentencing Spectrum
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•  focus on rehabilitation
•  focus on segregation
•  focus on eventual reintegration into
society
•  focus on deterrence (both specific
and general)
•  supports community based sentences
•  supports incarceration
•  supports parole
•  highly focused on safety of the
community
•  cognizant of detrimental effects of
incarceration
•  supports tailored and individualized
sentences
•  cognizant of maintaining some control
offenders upon release
•  highly focused on recidivism
(reoffence) rates
•  focus on parity (equity of sentences)
•  tends not to support parole
•  may support capital punishment
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...to contribute, along with crime prevention initiatives, to
respect for the law and the maintenance of a just,
peaceful and safe society by imposing just sanctions that
have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from
committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to
the community; and
(f) to promote a sense of responsibility in offenders, and
acknowledgment of the harm done to victims and to the
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community.
Dividing the Responsibility
• Under our Constitution, responsibility for corrections is
divided between federal and provincial governments.
• The Correctional Service of Canada is responsible for
offenders serving sentences of two years or longer
(including life sentences).
• Provinces are responsible for offenders sentenced to
probation and prison terms of less than two years as well
as youth corrections.
Sentencing
Options
• The National Parole Board makes conditional release
decisions for offenders held in federal and territorial
institutions and in provincial facilities of seven provinces
(Quebec, Ontario, and British Columbia have their own
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parole boards for offenders in their custody).
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Imprisonment
Intermittent Sentence
•  the most serious sentencing option available in Canada.
•  intended as a last resort (when less restrictive
alternatives are inappropriate)
•  courts are to consider all other available sanctions first
•  Where the court imposes a sentence of incarceration
not more than 90 days, the court may order that
sentence be served intermittently (i.e. on weekends).
•  A probation order must accompany an intermittent
sentence and is usually applicable only at such times
the probationer is not confined.
•  maximum term of incarceration:
•  summary conviction offences à six months.
•  indictable offences à 2 years to life.
•  sentences of less than two years are served in
provincial prisons.
•  sentences of two years or more are served in federal
penitentiaries.
•  If the intermittent sentence is to be followed by a
further probation, a second probation order is often
made.
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Fines
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Fines Continued
• The most frequently used sentencing option in Canada;
• 45% of convicted adult offenders in Canada are fined
(Canadian Centre for Justice Statistics, 1997, May).
• An order will be made that:
•  clearly sets out the amount of the fine,
•  the way the fine is to be paid and
• Any person convicted of an offence, except an offence
punishable by a minimum term of imprisonment, may
receive a fine in addition to, or in lieu of, any other
sanction imposed.
• A court may fine an offender only if the court is satisfied
that the offender is able to pay the fine or work it off in a
fine option program.
• The maximum fine for summary conviction offences used
to be $2,000.00, but changed to $5,000.00 in 2012.
•  the time(s) by which the fine, or portion of the fine,
must be paid.
• A copy of the order will be given to the offender.
• A number of options are available to assist in the
collection of fines:
•  fed. and prov. governments can refuse to issue or
renew permits or licenses until the fine is paid.
•  fines can be enforced through the civil courts.
• For more serious offences (indictable offences), there is
no limit to the amount of the fine.
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What if the Fine Isn’t Paid?
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Victim Surcharge
If an offender, without reasonable excuse, refuses to pay
or work off a fine, the offender will serve a term of
imprisonment.
The term of imprisonment is calculated as follows:
• s. 737 Criminal Code
• The court will also normally impose a victim fine
surcharge.
• a victim fine surcharge is an additional payment of:
the unpaid amount of the fine +
the costs and charges of committing and conveying
the defaulter to prison
8 hours per day X provincial minimum hourly wage
The term of imprisonment served for not paying the fine
cannot exceed what the court could have imposed at the
time of sentencing for the original offence. Any payments
of part of the fine, or work done in a fine option program,
will result in a proportionate reduction of the prison term.
• up to 30% extra on top of a fine,
or, in cases not involving fines:
• up to $100.00 for a summary conviction
• up to $200.00 for an indictable conviction
• This money goes into a special victims' fund to pay for
programs for all victims of crime.
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Restitution
Community Service
• a payment made by an offender directly to the victim to cover
expenses resulting from the crime, such as property loss or damage
or personal injury
•  A fine option program is a program which allows
offenders to work off their fines.
•  A fine option program typically involves community
service. Work is done in the community and credits are
earned at a specified amount per hour. These credits go
toward paying off the fine. The work may include snow
shovelling, cleaning up the park or delivering meals to the
elderly.
• available to victims of crime who have suffered property loss or
damage or personal injury
•  Maximum number of working hours is 240.
• The amount of restitution is equal to the replacement value of the
property. When someone is injured, the restitution may cover medical
bills and lost income. Restitution for pain and suffering is not
available through the criminal courts. Victims seeking
compensation for pain and suffering must make their claims in
civil court.
•  Maximum time span of community service order is 18
months.
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Considerations
• also available to persons acting in good faith who unknowingly
become victims of criminal activity, ie. unknowingly purchasing stolen
property, or loaning the offender money on the security of stolen
property, which is later confiscated by police and returned to the
lawful owner
• Victims can make an application to the court for restitution.
Restitution orders can be enforced by the civil courts.
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Considerations
Aggravating factors (tending to increase sentence):
Mitigating factors (tending to reduce sentence):
•  actual or threatened violence
•  absence of previous convictions
•  previous convictions
•  offender is physically or mentally impaired
•  cruelty towards victim
•  offender is quite young or elderly
•  particularly vulnerable victim (very old, young, disabled, etc.)
•  offender acted under duress
•  impediment of victim’s access to justice
•  victim provoked the offender
•  multiple victims or multiple incidents
•  restitution was made to the victim by the offender
•  substantial economic loss to victim
•  offender played minor role in the offence
•  breach of trust (victim had placed trust in the perpetrator)
•  planned or organized criminal activity
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Conditional Discharge
Suspended Sentences,
Conditional Sentences,
Discharges,
and Probation
This occurs when an offender is found guilty of an
offence, but the judge decides to not enter a conviction
against the offender. Rather, the offender is discharged
on the conditions prescribed in a probation order.
If an offender is convicted of a subsequent offence
during the term of probation, the court may decide to
revoke the probation order and impose any sentence
that could have been imposed at the time the order
was made.
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Absolute Discharge
A discharge can only be applied to cases where:
This occurs when an offender is found guilty of an
offence, but the judge decides to not enter a conviction
against the offender. Rather, the offender is discharged
with no conditions at all!
•  no minimum sentence stipulated under the CC.;
•  the maximum penalty is not greater than 14 years;
•  the accused is not perceived as a danger to society.
Usually applied to cases where:
•  the accused has suffered greatly from publicity and trial;
•  the accused may have already served time.
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Clarifying the Difference Between a Conditional Discharge and a
Conditional Sentence, by Judge Joe Kenkel
When an accused pleads guilty or is found guilty at the end of a trial, the
court enters a “finding of guilt.” However, Section 730 of the Criminal Code
says that, for certain offences, the court may decline to register a conviction
and instead discharge the accused, either absolutely or conditionally on
probation terms. The significance of not registering a conviction relates to a
criminal record.
If a conviction is registered, then that becomes part of a criminal record. If
you receive a discharge, technically that is not a criminal conviction and while
a record is kept of it for 3 years (conditional) or 1 year (absolute), after that
it’s automatically removed from the system and you don’t have to apply for a
pardon.
Example:
For an Assault, a court may grant the accused a conditional discharge and place the
accused on probation for one year with an order to do 40 hours of community service.
On the same facts, the court could also register a conviction, suspend the passing of
sentence (i.e. a conditional sentence) and place the accused on probation for one year with
the same 40 hours CSO.
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Some Points to Ponder, by Judge Joe Kenkel
• Under the YCJA young persons can now receive discharges. They couldn’t
under the prior YOA but it didn’t really matter as Youth Court records were
sealed at 18 anyway. Not clear why they made that change.
• The USA doesn’t recognize conditional discharges and sometimes absolute
discharges so if you say you don’t have a record at the border and you have
a conditional discharge, while the answer is technically correct here you may
be refused entry to the USA or worse for not telling them about what they
view as a criminal record (if you cross a border while the discharge is still on
the system)
Hypothetically…
If a student is about to go to the US on an NCAA scholarship and they
commit a serious offence that normally would not receive a discharge,
should they get one anyway to permit them to pursue that opportunity?
Would you make them do something before being sentenced to earn that
unusual sentence? Would that be giving elite athletes, business travelers
and others breaks that the average person doesn’t get? If yes, then is that
fair?
The sentences would look similar, but the Suspended Sentence would involve a permanent
criminal record, whereas the Conditional Discharge would not.
Suspended Sentence
Conditional Sentence
Note: S. 737(1)(a), regarding Suspended Sentences was in
force up to September 3, 1996. This section has been
replaced by S. 741 regarding Conditional Sentences.
On September 3, 1996, Bill C-41 was proclaimed in
force, providing for the conditional sentence, a new
sentence of imprisonment, now included in Part XXIII of
the Criminal Code of Canada. This legislative innovation
was intended by Parliament to reduce the rate of
incarceration in provincial institutions while promoting
principles of restorative justice.
It is thought that the conditional sentence scheme was
adopted in order to introduce an element of flexibility;
stated otherwise, the time-honoured scheme was
unduly rigid.
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Conditional Sentence
Conditional Sentence
Outlined under Section 742.1 of the Criminal Code, the conditional
sentence provides courts an alternative to incarceration.
Conditional sentences allow custody-bound offenders to serve their
prison terms in the community under strict conditions. To be eligible
for a conditional sentence:
Section 742.1 of the Criminal Code of Canada
Where a person is convicted of an offence, except an offence that is
punishable by a minimum term of imprisonment, and the court
(a)  imposes a sentence of imprisonment that is less than two years, and
•  no minimum sentence prescribed by the Crim. Code for the offence;
•  the judge decides that the sentence should be less than two years;
•  offender is not perceived as a danger to the public; and
•  the judge is convinced that a conditional sentence is consistent with
the purposes and principles of sentencing set out in the Criminal
Code.
An offender who breaches any mandatory or optional conditions
attached to the sentence order may be required to finish serving
the term in a correctional facility.
(b)  is satisfied that serving the sentence in the community would not
endanger the safety of the community and would be consistent with
the purposes and principles of sentencing set out in sections 718 to
718.2.
The court may, for the purposes of supervising the offender's behaviour in
the community, order that the offender serve the sentence in the
community, subject to the offender's complying with the conditions of a
conditional sentence order made under section 742.3.
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Meant to reduce the incarceration rate of adults in Canadian prisons, a rate that is
one of the highest in the western world.
Adult Probation
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Animal killer Kayla Bourque released to live in Vancouver
Adult probation is a court disposition that authorizes the offender to
remain at large in the community subject to conditions prescribed in
a probation order.
In Ontario, Probation Officers in 127 offices provide supervision to
approximately 53,000 adult probationers on any given day.
When Probation Can Be Used:
Probation can be ordered, for a period of up to three years, by
way of a conditional discharge or conditional sentence, or it may be
included with any one of the following dispositions:
•  fine;
•  imprisonment for a term not exceeding two years;
Video Link:
•  intermittent sentence; and
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http://www.cbc.ca/player/Embedded-Only/News/ID/2323861154/
Revocation of the Probation Order:
When is it mandatory?
Offenders with a conditional discharge, conditional (aka suspended)
sentence, or intermittent sentence must be placed on probation.
The Probation Order:
When a person on probation with a conditional
(suspended) sentence or a conditional discharge has
been charged and convicted of a subsequent offence
during the term of the order, the Crown Attorney may
apply to the judge to have the probation order revoked.
The court may then:
•  cannot remain in force for more than three years;
•  cannot be made to run consecutive to another order (although
orders do run concurrently where the offender is bound by a number
of different orders at the same time); and
•  end only on the expiry date unless the court revokes or terminates
the order early. The court can also, at any time, decrease the term of
probation.
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•  for a conditional sentence: impose any
sentence that may have been imposed had the
passing of sentence not been suspended; or
•  for a conditional discharge: revoke the discharge,
convict the probationer on the original charge, and
impose any sentence that could have been imposed
had the discharge not been granted initially.
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Enforcement of the Probation Order:
Revocation is NOT Double Jeopardy!
A conditional (aka “suspended”) sentence is not considered a final
sentence, since an accused who is convicted of breaching the
conditions of a probation order may, in addition to being sentenced
for the offence of breach of probation, also have the conditional
(suspended) sentence revoked.
Failure to comply with probation without a reasonable
excuse is a hybrid offence (Breach of Probation)
•  summary conviction: max. penalty 18 months in
jail and/or a fine not exceeding $2,000.00.
Once a conditional sentence is revoked, the court which originally
sentenced the accused may re-sentence the accused.
•  indictable conviction: max. penalty not
exceeding 2 years in jail.
This has been held not to be a case of double jeopardy because a
suspended sentence is not a final order.
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Conditional Sentencing: A Focus on the Conditions
Kayla Bourque, animal
killer, arrested for breach
of probation
Mandatory Conditions - The offender must:
Bourque was arrested
over an alleged offence
committed between
March 10-16, 2015.
•  keep the peace and be of good behaviour;
•  go to court when required;
•  report to a criminal justice system supervisor regularly;
•  stay in the area under the court's authority and get written permission to
travel outside this area; and
•  tell the court or criminal justice system supervisor before moving or when
changing jobs.
Link:
http://www.cbc.ca/news/canada/british-columbia/kayla-bourque-animal-killerarrested-for-breach-of-probation-1.3011168
Optional Conditions – They offender may be required to:
•  pay the victim restitution;
•  make other reparations to the victim or to the community;
•  participate in a treatment program (ie. alcohol, drug, anger management);
•  provide support for any dependents (such as a child or spouse);
•  do up to 240 hours of community service work; or
•  respect a curfew (stay at home except for work or approved activities).
The offender may be prohibited from:
• using alcohol or drugs, and
• possessing a gun, rifle or other weapon.
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Restorative Justice
Restorative justice invites the victims of crime and the community
to participate in a process of dealing with offenders and repairing
the harm caused by the offender.
Retribution and punishment, key elements of traditional criminal
justice processing, play less of a role. Restorative justice
programs have spread throughout North America, Europe and
elsewhere around the globe. One such program is the Restorative
Resolutions (RR) program that operates in Winnipeg.
Parole
Method: Offenders for whom the Crown was seeking sentences
of at least six months were referred to RR. Upon further
screening, a community-based plan was developed with input
from the victim(s) and submitted to the Court. If endorsed by the
Court, RR staff implemented the plan and supervised the offender
in the community.
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Restorative justice influenced paras e & f of Section 718 CC.
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SERVING A FEDERAL SENTENCE
THE COMMUNITY
SENTENCE
BEGINS
END OF SENTENCE
(full release once entire
sentence has been served)
ELIGIBILITY FOR
UNESCORTED
TEMPORARY
ABSENCE
(1/6th of sentence or
three years, which
ever is shorter; CSC
or NPB decision)
STATUTORY
RELEASE
(2/3rd of sentence;
detention possible for
some offenders)
ACCELERATED
ELIGIBILITY FOR
DAY PAROLE
Under the Accelerated
Review Process for
low-risk offenders.
(1/6th of sentence;
NPB decision)
ELIGIBILITY FOR
FULL PAROLE
(1/3rd of sentence; or 7
years, whichever is
less. NPB decision)
Temporary Absences
Temporary Absences may be granted to offenders for medical,
administrative, community service, family contact, and personal
development reasons (relating to rehabilitation) where it is
considered that the inmate will not present an undue risk to society.
An escorted temporary absence (ETA) may be granted at any time
during the sentence while an unescorted temporary absence (UTA)
may be granted after an offender has served one-sixth of the
sentence or six months, whichever is greater.
Temporary Absences are authorized by either the Warden of the
penitentiary or by the National Parole Board (NPB), depending on
factors such as the type of release, the offender’s sentence and
security classification. Offenders classified as maximum security do
not qualify for UTAs.
The success rate for ETAs and UTAs is over 99 per cent. This
means that offenders do not commit a new offence nor do they break
any of the conditions attached to their release.
ELIGIBILITY FOR DAY PAROLE
(six months prior to 1/3rd of sentence; NPB decision)
Work Release
Day Parole
Work release allows an offender, classified as minimum or medium
security and who is judged not to pose an undue risk, to do paid or
voluntary work in the community under supervision.
Day parole allows an offender to participate in community-based
activities to prepare for release on full parole or statutory release.
Generally, offenders become eligible to be considered for day parole
six months before their full parole eligibility date.
Besides offering practical experience to the offender and assistance
to the community, work releases contribute to public safety, because
they assist an offender’s reintegration into society and reduce the
chances of reoffending.
A new Day Parole program was introduced in Bill C-55 and came into
force on July 3, 1997. This "Accelerated Parole Review" applies only
to first time, non-violent, federal offenders. These offenders are
reviewed for Day Parole after having served 1/6th of their sentence.
Those imprisoned for either first or second-degree murder become
eligible for day parole three years before they are eligible for full
parole. The offender is usually required to return to an institution or a
halfway house each night.
About 85 per cent of day parolees are successful.
Full Parole
Inmates are normally eligible to be considered for full parole by the
NPB after serving one-third of the sentence, or seven years,
whichever is less. Under the CCRA, judges have, at the time of
sentencing, the option of lengthening the time that violent and serious
drug offenders spend in prison by delaying eligibility for full parole
until they have completed one-half of their sentence.
Offenders sentenced to life for first degree murder or high treason are
not eligible to be considered for parole until they have served 25
years. Those sentenced to life for second degree murder may apply
for parole after serving between 10 and 25 years, as determined by
the Court. However, anyone convicted of murder who must serve
more than 15 years before full parole eligibility, may apply after
serving 15 years for a judicial review by a Superior Court judge and a
jury who may reduce parole eligibility dates. Offenders who are
serving life sentences and who are granted parole remain on parole
for the rest of their lives.
On average, approximately 80 per cent of those released on full
parole are successful.
Statutory Release
By law, most offenders who are serving sentences of fixed length, and
who have not been granted parole or had their parole revoked, must
be released on statutory release after serving two-thirds of their
sentence.
Although statutory release decisions are not made by the NPB, the
Board may add conditions to the release to protect society and assist
the offender to adjust to the outside world in a law-abiding fashion.
Failure to comply with these conditions can result in a suspension by
the Correctional Service of Canada (CSC) and revocation of the
release by the NPB. The offender would then be returned to a
correctional facility.
If the NPB believes that the offender is likely to cause serious harm or
commit a serious drug offence before the expiration of the sentence
the Board may, upon referral from CSC: grant the offender "onechance" statutory release; order the offender to live under strict
residential conditions; or order the offender to be detained in
penitentiary until the end of the sentence.
Statutory release does not apply to offenders serving life or
indeterminate sentences.
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In Summary…
Spectrum of Correction Options
(In order of proximity to incarceration)
Crim.
charge
Trial;
accused
found
guilty
Discharge;
(conditional or
unconditional)
Accused
released with
no conviction.
Probation;
(always
conditional)
Accused
convicted, but
released.
Incarceration;
convicted
serves time
within a
correctional
facility.
Parole (released
on conditions)
Statutory
Day
Full
(1/6 to (1/3 or (2/3)
1/3) 7years)
Free!
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