A sentence is the penalty that is given to an offender who has pled guilty or who has been found guilty after a trial.
A sentence is different from diversion or a peace bond because the judge must make a finding of guilt before a sentence can be given.
Lawyers and judges will often say things like “pass sentence” or “impose sentence” to describe when an offender is being given a sentence by a judge.
In most criminal cases, sentencing usually takes place right after an offender has pled guilty or been found guilty after a trial. In some cases, the judge will not impose a sentence right away, but will instead adjourn the case to a later date for a sentencing hearing.
Adjourning a sentencing may happen for many reasons, and most often happens in more serious cases. A matter is usually adjourned for a sentencing hearing so the offender’s lawyer (or duty counsel) and the Crown can gather information that will help them argue for a certain type of sentence.
For example, a matter may be adjourned so that a letter from the offender’s employer can be obtained, or the Crown can get a victim impact statement from the victim, or a pre-sentence report (PSR) can be prepared.
A sentencing hearing is where an offender is given a sentence by a judge. It may take place right after an offender has pled guilty or been found guilty – or it may be days, weeks or months afterward. Sentencing hearings can be very short (sometimes only a few minutes) or much longer, taking hours or days to finish.
At some sentencing hearings, the Crown and the offender’s lawyer (or duty counsel) will agree on the type of sentence that the judge should give. At other hearings, the Crown and the offender’s lawyer (or duty counsel) will argue for different sentences. It is important to remember that the judge, not the lawyers, always makes the final decision on what the sentence will be.
As part of their arguments, the Crown and the offender’s lawyer (or duty counsel) can present things like letters, a PSR, or the offender’s criminal record and ask the judge for a certain type and/or length of sentence [link to types of sentence].
The materials presented at a sentencing hearing are often entered as exhibits.
After the lawyers have made their arguments (called “submissions”), the judge will consider their arguments and sentence the offender. Sometimes the judge will do this right after submissions. Other times, the judge will take a break or even adjourn the case to another day to think about what sentence they will give.
A joint submission is when both the Crown and the offender’s lawyer (or duty counsel) agree on the sentence they are asking the judge to give. In most cases, a joint submission will have been agreed to by lawyers in a resolution meeting.
However, even when the lawyers have a joint submission, the judge does not necessarily have to agree with them and can still give a different type or length of sentence. In many cases, the judge will agree with the joint submission, but the judge always makes the final decision on a sentence.
A Pre-Sentence Report (PSR) is a report prepared by a probation officer [jump to probation] to help the judge decide what sentence to give. It is used to find out about an offender’s background.
If a judge orders a PSR, a probation officer will interview the offender, the offender’s family, friends, and employer (if they are working). A case is usually adjourned to allow a probation officer time to prepare the PSR. It usually takes between two and six weeks to prepare.
Some sentencing hearings involve a Victim Impact Statement (VIS). A VIS is usually written by the victim. This is done to allow the victim an opportunity to describe how they have been affected by the criminal offence. It can be read aloud by the victim or Crown or simply filed with the court as an exhibit.
A person is considered a victim if harm has been done to them or they have suffered a physical or emotional loss because of a criminal offence.
If a VIS is made an exhibit and/or read aloud in court, the judge will consider it in sentencing the offender. In some cases, if the victim is in the courtroom, the judge will simply ask them to talk about how the case has affected him or her, even if a VIS hasn’t been prepared.
A finding of guilt is a ruling made by a judge. A judge will make a finding of guilt in one of two situations:
an accused has pled guilty and accepts facts that amount to a criminal offence;
Except in certain cases, if a judge makes a finding of guilt, the judge will give the offender a sentence.
Depending on the type of sentence given, the judge may also register a conviction against the offender.
An offender who has a conviction registered against them will have a criminal record and will have to apply for a "record suspension" (formerly known as a "pardon") to have the conviction removed.
If a judge makes a finding of guilt and gives any sentence other than an absolute discharge or a conditional discharge, a conviction will be registered against the offender.