This article, written by Solomon Friedman, originally appeared in the Ottawa Sun on October 26, 2012.
The range of sentences which can be imposed by a judge can be understood like a ladder of consequences – a list of increasingly severe sanctions, each with more serious implications for the liberty of the offender.
At the bottom of the ladder – in fact, in some ways, before the ladder even begins – is the option of “diversion”.
When an individual is charged with an offence, there are usually only two outcomes – either the person is found guilty (following a plea or a trial) or not guilty. Diversion is, in effect, a third outcome.
For people charged with minor, non-violent offences, the prosecutor can offer to “divert” the charge out of the criminal justice system. This option is usually only available to persons who have no pre-existing criminal record.
In practice, this usually involves the charged person participating in some rehabilitative or educational program. Upon the successful completion of the program, the prosecutor will ask the court to withdraw the criminal charge. Under this scenario, the accused does not need to plead guilty and no judicial findings are made. Accordingly, once the charge is withdrawn, the accused is not saddled with a criminal record.
The first true step on the ladder is the “discharge”. Following a finding of guilt – either by plea or after trial – a judge, in certain circumstances – can order that the accused be discharged. Discharges are only available for offences that carry no minimum sentence and a maximum sentence of less than fourteen years imprisonment.
The judge must determine that a discharge is in the best interests of the accused (not a high hurdle) and is not contrary to the public interest (often, the more difficult determination).
There are two types of discharges: absolute and conditional. An absolute discharge takes effect immediately, while a conditional discharge applies only once a probationary period (of up to three years) is completed without further incident.
The effect of a discharge is two-fold. First, once the discharge takes effect, the accused can be said to have never been convicted of the offence, despite the court’s finding of guilt. Secondly, and most importantly, the record of the discharge is eventually purged from police and other government databases.
Individuals who are granted discharges do not need to apply for record suspensions (formerly, pardons), as they are not the subject of a criminal conviction.
A judge can also order that the passing of sentence be suspended – resulting in no immediate criminal sanction – and order the offender to complete a period of probation. A probationary order, often overseen by a probation officer, can include many terms and conditions. Abstention from drugs and alcohol, non-association with named persons and a weapons prohibition are all common conditions. A breach of a probation order can result in a fresh criminal charge being laid.
The court also has the power to sentence an accused to pay a monetary fine. In fact, the minimum sentence for a person convicted of impaired driving (for a first offence) is a fine of $1000. However, before imposing a fine and determining a period for payment, the judge must be satisfied that the offender is indeed capable of paying the financial penalty.
Next up the ladder of consequences is the “conditional sentence”, sometimes referred to colloquially as “house arrest”. Despite the “house arrest” moniker, courts have stressed time and again that a conditional sentence is a jail sentence. However, it is a jail sentence that the judge has determined should be served in the community.
Conditional sentences are only available in relatively narrow circumstances. First of all, the offence in question must not be a “serious personal injury offence”, a terrorism offence or an offence committed for the benefit of a criminal organization. Moreover, it must not be an offence for which there is a maximum sentence of 10 years or more. Finally, a conditional sentence is unavailable where Parliament has enacted a mandatory minimum sentence for the offence.
A judge must also be satisfied that granting the conditional sentence will not endanger the safety of the public and will not, in some other way, be generally inconsistent with the purposes and principles of sentencing.
In general, an individual serving a conditional sentence will be subject to onerous conditions and strict supervision. This sentence can last for a maximum of two years. The offender will usually be prohibited from leaving his or her house, except for the purposes of employment, medical appointments and to obtain the “necessities of life”.
At the very top of the ladder lies imprisonment. In Canada, a court can impose a jail sentence ranging from one day to life in prison. Sentences of under two years are served in provincial reformatories, while longer terms must be served in a federal penitentiary.
It is apparent from these sentencing options that judges have a wide range of tools at their disposal in sentencing offenders. It is discouraging to note, in the wake of mandatory minimum sentences, that judges are seeing their discretion being limited and access to many of these valuable tools being unfairly curtailed.
Perhaps it is time to rethink this approach and return discretion to those best positioned to exercise it – the sentencing judge, who has heard all the evidence, convicted the offender and can pass a sentence founded in proportionality and restraint.