What types of sentences can a judge impose after a finding of guilt is made?
There are several types of sentences that a judge can give an offender. The most common sentences are:
An absolute discharge is the lowest-level adult sentence that an offender can get.
If an offender gets an absolute discharge, a finding of guilt is made but no conviction is registered, and they are not given any conditions to follow (i.e. a probation order). The offender is finished with their case that day. They don’t have to come to court again or check in with a probation officer.
An absolute discharge will stay on an offender’s criminal record for one year after the date they received the discharge. The offender doesn’t have to apply for a pardon for the discharge to be removed from their record.
A conditional discharge is similar to an absolute discharge because a finding of guilt is made, but no conviction is registered. What makes it different from an absolute discharge is that there are conditions that the offender must follow. The conditions always come in a probation order that can be in effect from one to three years.
A conditional discharge stays on an offender’s criminal record for three years after the completion of the probation order. Like an absolute discharge, the offender doesn’t have to apply for a pardon for the discharge to be removed from his/her record.
Like a conditional discharge, a suspended sentence involves following conditions in a probation order for a period of one to three years.
The main difference between a conditional discharge and a suspended sentence is that an offender who gets a suspended sentence has a conviction registered against them. This means that the offender who gets a suspended sentence will have a criminal record and will have to apply for a pardon to have the conviction removed from their record.
Probation is a court order to do (or not do) certain things for a period of time. It is usually called a probation order.
An offender who gets a conditional discharge or a suspended sentence will always have a probation order that they must follow. A probation order can also be combined with a fine, a conditional sentence, intermittent imprisonment, or imprisonment. The maximum length of a probation order is three years. In many cases they are one or two years long.
Every probation order will have the following conditions:
keep the peace and be of good behaviour;
appear in court when ordered by the court;
tell the court or probation officer about any change of name, address or job.
Other conditions sometimes included as part of a probation order are:
report to a probation officer (sometimes every week or month);
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not buy, carry, or drink alcohol;
not have or use drugs that aren’t prescribed by a doctor;
not have or carry any weapons (e.g. knives etc.);
perform community service;
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stay away from a certain person or persons, and not go to their house or where they work;
not to call, text message or email a certain person or persons;
give money back to a victim;
go to counselling or rehabilitation.
In a lot of probation orders, the judge will make the offender report to a probation officer. A probation officer is not the same as a police officer, but they do have the power to charge an offender with a criminal offence if they break their probation conditions.
If an offender has a condition to go to counselling or do community service, or if the judge feels they need supervision, the judge will usually make the offender report to a probation officer. Reporting is usually every week or every month, but it can be more frequent or less often. Sometimes (usually after the first reporting date) the judge leaves it up to the probation officer to decide how often the offender should report.
A fine is an amount of money that an offender must pay to the court. It is different from restitution or a charitable donation.
If an offender is given a fine, they will have a conviction registered against them and will have to apply for a pardon to have the fine removed from their record.
A fine can be given instead of, or in addition to, imprisonment, a conditional sentence, or an intermittent sentence. This is true unless the criminal offence requires minimum jail time. If this is the case, a fine can’t be given instead of jail, but can still be given in addition to the minimum jail time.
A fine cannot be given on top of an absolute discharge, a conditional discharge, or a suspended sentence.
Certain criminal offences, like impaired driving or driving over 80, have minimum fines.
If a judge is going to give the offender a fine, and the criminal offence does not have a minimum fine, the judge has to decide whether the offender can actually pay a fine. This usually means that the judge will ask the offender questions such as: Are you working? Do you have children to support? Does your spouse work?
If an offender can’t pay their fine in the time they are given, they may be able to apply to the court for an extension of time. Extensions aren’t automatic. To get an extension, the offender has to show that they have tried their best to pay the fine in the time they have been given.
Imprisonment is a jail sentence. After a judge gives a jail sentence, the offender is taken to jail and a conviction is registered against them. An offender has to apply for a pardon in order to have a jail sentence removed from their record.
If an offender is sent to jail for less than two years, they will go to a provincial institution such as Maplehurst Correctional Facility in Milton or the Central East Correctional Centre in Lindsay.
If an offender is sent to jail for two years or more, they will go to a federal penitentiary, such as the Kingston Penitentiary.
You will sometimes hear that an offender is sent to jail for “two years less a day.” This is done so that the offender will go to a provincial institution, rather than a federal penitentiary.
In some cases, the sentencing judge may give an offender credit for time they have spent in jail before being sentenced. This is often called “pre-sentence custody,” “pre-trial custody,” or “dead time,” and it can be used to reduce the length of a jail sentence.
If the judge does give credit for pre-sentence custody, they may have the option of giving “enhanced credit” or “two-for-one” credit. This means that for every day the offender spent in pre-sentence custody, the judge reduces the jail sentence by two days. For example, if the judge feels that a 45 day jail sentence is appropriate, and an offender spent 15 days in jail in pre-sentence custody, the judge may reduce the sentence that they were going to impose by 30 days, making the sentence 15 days (instead of 45).
Intermittent sentence (“weekends”)
An intermittent sentence is a jail sentence that the offender serves in ”chunks” of time, instead of all at once.
For example, if an offender gets an intermittent sentence, they may go jail on the weekends, (i.e., Friday night until Monday morning) but be out of jail during the week.
This continues until the sentence is finished. For this reason, intermittent sentences are sometimes called “weekends,” but they don’t necessarily have to be served on weekends. For example, a judge may let an offender serve an intermittent sentence by being in jail from Monday until Friday and being out of jail on weekends.
When an offender serving an intermittent sentence is not in jail, they are on a probation order.
An intermittent sentence can only happen if the judge imposes a sentence of 90 days or less.
To get an intermittent sentence, the offender will usually have to show the judge that they have a job or other significant responsibilities (e.g., child care) which would make it very hard to serve a regular jail sentence. Judges are also unlikely to give an intermittent sentence to an offender that has a criminal record that includes charges such as breach of probation or fail to comply with recognizance.
Conditional sentence ("house arrest")
A conditional sentence is an imprisonment (jail) sentence, except that the offender serves the sentence outside of jail, under strict, jail-like conditions.
Conditional sentences are sometimes called “house arrest,” because they often require an offender to spend all or part of the sentence in their house. Just like imprisonment, a conditional sentence will result in a conviction being registered against the offender.
To give an offender a conditional sentence, the judge first imposes a sentence of imprisonment and then considers whether to let the offender serve the sentence outside of jail.
There are restrictions on when a judge can impose a conditional sentence. A judge can only impose a conditional sentence if:
the sentence of imprisonment is less than two years;
the offender has not been convicted of a criminal offence that requires a minimum amount of jail time;
the offender has not been convicted of a serious personal injury offence, a terrorism offence, or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more;
the judge is satisfied that letting the offender serve the sentence in the community would not threaten the safety of the community;
the judge is satisfied that having the offender serve the sentence in the community is consistent with the sentencing principles of the Criminal Code.
Conditional sentences have mandatory conditions, and they usually also have restrictions that make it like a jail sentence. House arrest is often part of a conditional sentence; at least for part of the sentence. House arrest usually means that the offender must stay in their home at all times (or during certain hours) unless they are working, attending school or religious worship, or for medical appointments or emergencies. Other conditions attached may be similar to those of a probation order. It is also common for a probation order to follow a conditional sentence.
A conditional sentence is supervised by a conditional sentence supervisor (who is actually a probation officer.) Every conditional sentence requires the offender to report to the conditional sentence supervisor at least once. On many conditional sentences, the offender has to report several times.
If an offender allegedly breaks one or more of the conditions of a conditional sentence, there may be a hearing held in front of a judge. If the judge is convinced that the offender broke one or more of the conditions without a lawful or reasonable excuse, the judge may make the offender serve the remaining time in jail.