Sentencing and the Role of Defence Counsel

Sentencing

Once you have been charged with a criminal offence you have, essentially, two choices as to how to proceed: you can go to trial or plead guilty.

If you plead guilty or have been found guilty after trial, you will then have to go through the process of sentencing. Being sentenced is not simply about receiving a punishment for a crime. The implications are far more broad and having an experienced criminal defence lawyer can make a world of difference. As mentioned, it is a process, and it can be a complicated task not only for lawyers but also for judges. Just because you have plead guilty or have been found guilty of a criminal offences does not necessarily mean you will get a permanent criminal record or spend time in actual jail. Rather, there are many options available to a judge at a sentencing hearing that can range from an absolute discharge (i.e. where the charges are essentially dismissed, without a criminal record, despite the finding of guilt), to community service and probation (where you will not incur a criminal record if you successfully complete all the required conditions) to probation (where you would incur a criminal record) to house arrest to actual time in prison.

Being charged with a criminal offence can be very stressful and sometimes disruptive. The same can be said if you are about to be sentenced for an offence. Your liberty or freedom is often at stake. Your reputation, employment or livelihood could be put in jeopardy. Receiving a criminal record can pose great difficulties for future employment and travel opportunities. Your family and friends can also be adversely affected. In short, sentencing should not be taken lightly. The job of a defence lawyer is to take your matter very seriously and advocate on your behalf to make sure that you receive the best-possible sentence that is fair. Defence lawyers are often able to come up with create sentencing options that you may not even consider, having been immersed in the process on a daily basis.

Is sentencing the same as punishment?

Not quite. The fundamental purpose of sentencing is to maintain a safe and peaceful society by imposing fair sanctions. It ensures that society upholds respect for the rule of law. Punishing a person for a misdeed is not the only reason for sentencing. It also serves to discourage others from committing crime, and to condemn unlawful acts. If necessary, it operates to separate offenders from society through incarceration. It also assists in rehabilitating offenders, and in promoting a sense of responsibility for the harm done to the victim/s and the community.

As mentioned, sentencing can be a complex process. Lawyers and judges attempt to come up with a sentence that is appropriate considering two main factors: the seriousness of the offence and the level of responsibility of the offender. It is the job of your experienced criminal lawyer to highlight for the judge the mitigating factors (i.e. the factors which might reduce a sentence, that you may not be aware of on your own) when they advocate for a fit and proper sentence. This provides the court a full and fair picture of the offender, as a human being and a person.

Will I be facing jail? For how long? Will I get a criminal record?

Understandably, these are very common questions that are asked if someone is charged, or if someone pleads or is found guilty. It is the job of your experienced criminal lawyer’s job to make sure that you are well-informed about the potential sentence. The answer to these questions could depend on a lot of things. For example, previous criminal convictions could be a factor. The harm to the victims and to the community are also considered. At the same time, your criminal lawyer will be aware of other sentencing principles that suggest that less jail time and more helpful, rehabilitative sentencing options (such as probation or house arrest) may be more appropriate for your individual case. Several principles of sentencing that your criminal defence lawyer will be familiar with will indicate that jail should be a last resort and that the punishment should not be unduly long or harsh. Your criminal lawyer will also become very familiar with your personal background and circumstances, including circumstances that you may not think are relevant that your lawyer will know to highlight for the judge. These could have a significant impact on the sentence that will be imposed by the judge. Ultimately, determining a proper sentence is not black and white. Seeking the assistance of an experienced criminal defence lawyer who has expertise in sentencing is therefore encouraged.

Just because the Crown (i.e. the lawyer for the government) may suggest that you should spend some time in jail does not mean that this will necessarily happen. Another option, that your criminal defence lawyer in Edmonton will be aware of, is called a Conditional Sentence Orders (CSOs) or house arrest. While considered a period of imprisonment, it is served in your house on very strict conditions. Your Edmonton Criminal Defence Lawyer can talk to you about your options about serving your jail sentence in the community, on house arrest.

Jail sentences can also be either served consecutively or concurrently, meaning that if you are charged with more than one offence where the Crown is seeking jail, one or more counts can either add time to your jail sentence or not add jail time. Whether an additional offence adds jail time to your sentence depends on the type and severity of the separate offences and only those who are up to date on the most recent law, such as your Edmonton criminal defence lawyer, will know whether a certain additional charge should add more jail time to your sentence. There are also other options other than adding more jail time to your sentence. For example, your jail and probation sentences may be combined or you may be permitted to serve your jail sentence on weekends or on your days off. Only an expert in criminal defence law in Alberta and Edmonton can tell you what the law say with respect to each of these factors at any given time. I can’t afford to go to jail or have a criminal record...

Although the Crown may suggest that jail is appropriate in the circumstances, the Criminal Code suggest that jail should be the last resort, subject to some exceptions. While fines and probation are great alternatives to spending time in jail, they show your criminal conviction as reflected in a criminal record check. A mark on your criminal record can create difficulties, particularly when looking for employment or if you are planning to travel overseas. Therefore, where appropriate, an absolute or conditional discharge should be sought. Legally speaking, a discharge is appropriate where it is in the best interest of the offender and is not contrary to the public interest. If you are discharged, a conviction for the offence/s will not be entered as part of your criminal record. To be successful, a proposal for a discharge usually requires the tact and skill of an experienced defence lawyer.

Apart from ensuring that you receive a fair sentence, a skilled defence lawyer can pre- emptively resolve a matter for you without having to go through a trial or sentencing. Perhaps the best resolution of any criminal charge will come in the form of a stay or withdrawal of charges. This could result from successful negotiations undertaken by your lawyer with the Prosecutor. Your matter may also be appropriately resolved through diversion programs, such as the Alternative Measures Program (AMP) or Mental Health Diversion (MHD). In other cases, your lawyer may be successful in negotiating a Peace Bond, under the common law or via the Criminal Code. Both means of resolution ensure that you do not get a criminal record. Moreover, it can save you time, effort, and a significant amount of stress that would otherwise be spent if your matter proceeds to trial or sentencing.

What are ‘Ancillary Orders’?

One area that is sometimes overlooked as part of a sentence involves so-called Ancillary Orders. These include Firearms Prohibition, Forfeiture Orders, DNA Orders, SOIRA Orders, etc. Such orders could have a significant effect on an individual and should not be disregarded. For example, a firearms prohibition could be devastating to a person who provides sustenance to his/her family through hunting. In a similar vein, driving prohibitions are also matters that should taken seriously, especially since such prohibitions are generally administered by both federal (i.e. Criminal Code) and provincial legislation (Traffic Safety Act). The application of the driving prohibitions can sometimes be complex because of their dual nature or source.

As you have seen, a criminal matter may proceed in many different ways and could lead to a variety of outcomes. No matter what you have been charged with and how your matter proceeds, it must be handled cautiously and seriously. Pleading guilty or speaking to your sentence after you have been found guilty at trial is not a simple black and white matter. Sentencing is far more complex than simply taking responsibility and receiving punishment. Various considerations must be taken into account and serious thought and analysis must be put into a sentence before it is proposed or imposed. It is a complex process that requires the expertise of a lawyer who will vigorously advocate on your behalf. Therefore, if you have been charged with an offence, you are strongly encouraged to seek the assistance of a skilled and experienced lawyer to resolve your matter or speak to sentence.

For additional information about diversion programs or sentencing (pleading guilty), give us a call toll-free at 1-833-784-7500 or email us at consult@libertylaw.ca.


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