TYPES of SENTENCES

Adapted from Blair, A. et al. (2009). Types of Traditional Sentences. The Law in Canada. Toronto: Pearson.

Discharge
The most lenient sentence is a discharge, or release. A discharge may be granted for a minor or firsttime offence that does not carry a minimum sentence and for which the penalty is less than 14 years. There are two types of discharges absolute and conditional. An absolute charge means that even though the accused is found guilty, the Judge sets that person free. After one year, the offenders criminal record is destroyed. For minor offences, a judge may also grant a conditional discharge a release with terms attached, such as avoiding contact with certain people and observing a set curfew. If these terms are obeyed, after a specified period the discharge will become absolute. With this type of discharge, the criminal record is kept for three years from the date of the conviction and then destroyed. If the terms of the discharge are violated, the discharge is revoked and a more severe sentence is imposed.

Probation
The word probation comes from the Latin word probatio, which means proof. Probation is a sentence that allows a convicted offender to prove that he or she is able to live in the community without committing another offence. Any offender on probation is under close supervision and subject to certain restrictions. Note that a probation order may be given either in addition to or in place of a prison term. A parole officer supervises an offender on probation and is responsible for monitoring the offenders behaviour. During probation, the offender must comply with a specific set of conditions in order to prove to the court that he or she will not reoffend. Failure to comply with these conditions can lead to facing additional terms. Or, the probation order may be revoked, and the offender will be sentenced on the original conviction. Sentencing could mean imprisonment, fines, or both. The offender can also be charged with breach of probation. Every probation order has three compulsory conditions. The offender must keep the peace and demonstrate good behaviour; appear in court when required; and notify the Court or probation officer of any change of name, address, or employment. A probation order may also include optional conditions, such as reporting regularly to a probation officer; not associating with known criminals; staying away from particular locations; attending counselling sessions; paying for damages resulting from the offence; and refraining from alcohol and illegal drug use

Suspended Sentence
A suspended sentence is a judgement that is passed but not carried out as long as the offender meets certain conditions set out by the Judge. Suspended sentences can only be imposed for offences that have no minimum punishment required by the Criminal Code. They are usually given for first-time or minor offences and in situations where the Judge feels that the knowledge of the sentence alone is sufficient to keep the offender in line. The offender would still have a criminal record and could be placed on probation

Intermittent Sentence
An intermittent sentence is a prison sentence of less than 90 days that can be served on weekends and at night, so the offender can serve the time in intervals instead of all at once. Intermittent sentences are usually given to offenders who are not violent, have steady jobs, and whose families depend on their income. The Court always indicates when the offender must report to jail. When not in jail, the offender is subject to a probation order.

Conditional Sentence
A conditional sentence is a prison term of less than two years that may be served in the community rather than in prison. A judge can impose a conditional sentence if the offence does not carry a minimum sentence. The terms for a conditional sentence are stricter than they are for probation or a suspended sentence. Such terms might include performing community service or seeking treatment for drug addiction.

Electronic Monitoring
Electronic monitoring (EM) began as a way to track and supervise offenders on probation. As prison populations and costs increased in the 1980s and 1990s, authorities saw electronic monitoring as an alternative to incarceration. Electronic monitoring is now used to supervise offenders in the community as long as they stay in their homes. Exceptions are allowed for some offenders who have jobs outside the home or who wish to attend devotional services. The offender wears an electronic bracelet that emits a signal to a computer at a remote location. This signal indicates the offenders whereabouts. Should the offender leave the home base, an alarm sounds to alert the authorities. Other EM systems include random telephone dialing by computer to the offenders home to confirm that the offender is on the premises, a video camera near the telephone to verify the offenders presence, and breath testing from remote location for detecting violations of alcohol restrictions.

Binding Over, Deportation, and Fines

Binding over is a court order to keep the peace, commonly known as a peace bond. It may be imposed on someone who threatens another person or that persons family or property. Technically, a binding over is not actually a sentence, since no crime has been committed. The person who feels threatened presents the details to the Court. The complainant and the defendant appear before a judge, who then orders the defendant to keep the peace and demonstrate good behaviour for up to 12 months. No criminal offence occurs unless the peace bond is violated or the defendant refuses to be bound. A restraining order is also a court order, but it is issued immediately to stop someone from taking any harmful action. A restraining order is temporary, intended to last only until a hearing can be held. Anyone who is not a Canadian citizen and commits an indictable offence in Canada can be deported. Deportation involves expelling an offender from the country, usually sending the offender back to his or her native land. This was the case for a 35-year-old Winnipeg man who was sentenced in August 2008 to eight years in prison for failing to tell two women that he was infected with HIV before having unprotected sex with them. He will be deported to his native Zambia after he has served his sentence. Fines are specific amounts of money that offenders are required to pay the court as punishment. For summary conviction offences, a maximum fine of $2000 can be imposed. Fines are optional for indictable offences that have a minimum sentence of imprisonment and a maximum prison term of less than five years. Before imposing a fine, the Judge considers the offenders ability to pay. An offender who fails to pay a fine may face a prison term.

Suspension of Privileges
Some offences are best dealt with through a suspension of privilege, such as withholding a drivers licence or a licence to own a firearm. Usually a suspension is in effect for a specified period, but under certain circumstances it can last a lifetime.

Incarceration
In Canada, authorities cannot just lock someone up and throw away the key, which is why incarceration is defined as imprisonment for a specified length of time. Each criminal offence has a maximum sentence. For example, the maximum for robbery or manslaughter is imprisonment for life; the maximum for aggravated sexual assault is 25 years. Such maximum sentences are rarely imposed because of their severity. In fact, some legal experts maintain that certain maximums may be outdated or too broad to be useful. Instead, judges use a range of punishments in determining appropriate sentences. For instance, if the maximum penalty for a first non-violent offence is less than five years in prison, the Judge is not bound to give any prison sentence at all and may opt for an alternative form of punishment.

Some serious offences carry a mandatory minimum sentence. For example, according to s. 745 (c) of the Criminal Code, second-degree murder carries a ten-year minimum term of imprisonment. 745 (c) in respect of a person who has been convicted of second-degree murder, that the person be sentenced to imprisonment for life without eligibility for parole until the person has served at least ten years of the sentence.

Length of Imprisonment
The length of a prison sentence depends on several factors the penalty attached to the offence in the Criminal Code, details regarding the crime and the offender, and whether multiple sentences should be served. Sentences of less than two years are served in provincial facilities, while those of two years or more are served in federal institutions. In rare cases, the Court may consider someone a dangerous offender someone who constitutes a threat to the life, safety, or physical and mental well-being of other persons. In such cases, s. 753 (4) of the Criminal Code requires the Judge to impose an indeterminate sentence, which means that the offender may be held for an indefinite period in a federal prison. A dangerous offender may apply for parole but will remain in prison until a parole board believes that he or she can be released safely into the community. When criminals are convicted of more than one offence at a time, they must serve more than one sentence. Concurrent sentences are served at the same time, which means that two sentences of four years each would result in a four-year prison term. Consecutive sentences are served one after another; two sentences of four years each would result in an eight-year prison term. In Canada, consecutive sentences are rare.

Mandatory Minimum Sentences of Imprisonment

The Canadian Criminal Code has about 45 offences for which a mandatory minimum sentence of imprisonment must be imposed. Apart from life in prison for murder, these offences fall under three categories. Here is a sample of some of these offences and their penalties. Offences Involving Firearms and Other Weapons Four years when a firearm is used in the commission of manslaughter, attempted murder, bodily harm with intent, sexual assault, aggravated sexual assault, kidnapping, hostage taking, robbery, extortion, and criminal negligence causing death. One year (first conviction) and three years (second or subsequent conviction) for using a firearm in the commission of an indictable offence, in an attempt, or during flight afterwards.

Sexual Offences Involving Children Two years for living off the avails of prostitution of someone under 18; five years if violence, intimidation, or coercion is used. Six months for soliciting the sexual services of someone under 18

Impaired Driving 14 days (second conviction) and 90 days (third or subsequent conviction) for impaired driving, a blood-alcohol over .08, and refusing to provide a breath sample.

For these and other offences, judges have no choice but to impose the prescribed mandatory minimum sentence (mms) attached to the offence. There are no exceptions. In some cases, however, a mandatory minimum sentence is simply too harsh. Consider the case of OPP Constable Stanley Levant. In 1994, Levant shot and killed a suspect during a split-second, highstress confrontation. He was charged and convicted. However, because of his spotless record and the desperate situation he was in, the Judge sentenced Levant to just six months in jail. If this incident had happened after 2005, the year the mandatory minimum sentence for this firearm offence was enacted, Levant would have automatically received four years.

Restorative Justice Programs

Restorative justice (also known as alternative justice) differs from traditional approaches because it focuses on using joint problem solving to deal with the harmful effects of crime. The restorative process unites victims, offenders, and the community in the effort to have offenders assume accountability for their crimes and to give them the opportunity to make amends. The goals of restorative justice are to restore, or rebuild, the offenders self-respect, to empower the offender and the victim to address their conflict, and to facilitate reconciliation between the offender and the victim within the community. The restorative process serves practical purposes as well, by easing the burden of backlog in the courts and by lowering Court and prison costs. These programs also keep offenders away from the negative influence of incarcerated criminals. Section 717 of the Criminal Code defines specific situations in which alternative measures may be used. For instance, the Court must determine that these measures do not conflict with the protection of society. In all cases, the offender must accept responsibility for the offence and enter the restorative program voluntarily. Victim-offender mediation, family group conferencing, and victim-offender panels are three types of restorative programs that may be used as alternatives to incarceration.

Victim-Offender Mediation Victim-offender mediation involves four stages: case referral and acceptance, preparation, the mediation itself, and follow-up. Often the first stage takes place after a conviction or a formal admission of guilt, but on occasion, case referral occurs prior to conviction in an attempt to avoid prosecution altogether. Studies indicate that this form of mediation has benefited both offenders and victims by decreasing the incidence of criminal behaviour and by reducing feelings of fear and anxiety among the victims. In mediation itself, the offender and the victim meet with a trained mediator. Both parties present their version of the events and express their feelings regarding the offence. In the victims case, such feelings may include a sense of helplessness and personal loss. The offender may express remorse and may explain the circumstances surrounding his or her behaviour. The mediators role is to facilitate this interaction. During the process, the participants agree to appropriate restitution for the offence, which may include payment and/or services. These terms are then recorded and monitored.

Family Group Conferencing Like victim-offender mediation, family group conferencing brings together the victim and the offender. The difference is that family group conferencing also involves family members, community support groups, police officers, social welfare officials, and lawyers. This program is used only when an offender admits guilt. Before the conference begins, an official reminds the offender that he or she has the right to end the conference at any time and proceed to court instead. Throughout the conference, a trained coordinator monitors the process to ensure that the offender knows that it is his or her conduct that is being denounced, not the offender as a person. The offender also learns that support to reintegrate into society will come from the community. Family group conferencing involves three stages: preparation, the conference itself, and postconference. The offender begins the conference with an explanation of events. Then the victim tells what happened. They may question one another and be questioned by members of their respective families. Restitution is discussed privately by the offender and his or her family before it is presented as an offer. Negotiations continue until a consensus is reached. After the conference, the coordinator monitors the terms of the agreement for successful completion. If the agreement is violated, the case returns to the courts for action.

Victim-Offender Panels When victims and offenders are unable or unwilling to meet each other, victim-offender panels provide an opportunity for closure. A panel of victims and offenders linked by a common crime (but not the

same crime) express their feelings about the offence. A moderator issues guidelines and monitors the panel. Another type of victim panel has been organized by Mothers Against Drunk Driving (MADD). This panel, called a victim impact panel, enables victims and victims families to share the impact drunk driving has had on their lives and to allow offenders to express their remorse.

Aboriginal Sentencing Circles Over the years there has been a disproportionate number of Aboriginal people incarcerated in Canadian prisons one reason why the federal government proposed changes to the Criminal Code to accommodate alternative measures. Sentencing circles qualify as one of these measures. They may not, however, be used for offences demanding sentences of more than two years in prison. A sentencing circle comprises the offender, the offenders family, the victim, the victims family, elders, other members of the offenders Aboriginal community, police officers, and a trial judge. The process involves separating the person from the criminal act the person committed. All the participants in the circle do their best to convey to the offender that there are people who care for his or her well-being. Because balance and consensus are important traditional values, everyone participates by offering an opinion. For this reason, reaching a consensus requires patience, thought, deliberation, and speaking skill.