How Does a Judge Decide on a Sentence?

The judge will sentence the accused (give a penalty or punishment) if he or she is convicted of a criminal offence or if the accused pleads guilty to a criminal charge. The sentence could be probation, fines, or a jail sentence. The length of the sentences depends on the crime.

In giving a sentence, the judge wants to:

• Discourage the accused and others from committing future crimes
• Keep society safe and prevent another crime from happening
• Make the offender responsible and acknowledge the harm he or she has done to victims and the community
• Provide reparation (fix) the harm done to victims of the community
• Consider the accused’s rehabilitation

The judge will consider these things when deciding on an appropriate sentence:

• The sentence should be similar to the sentence given to other offenders for similar crimes
• The sentence should not deprive the offender of his or her liberty (freedom) if there is an alternative to jail
• All other reasonable punishments other than going to jail should be considered (especially for  Aboriginal (First Nations) offenders)

The accused might not go to jail

Getting a sentence after being convicted does not always mean that the accused will go to jail. The accused might be given:

-       A discharge
-       A conditional sentence order
-       A suspended sentence and probation
-       A fine
-       Restitution (make right or pay money)

Absolute or Conditional Discharges

A discharge means that the judge finds the accused guilty, but lets him or her go free. This usually only happens when the offence is not serious and the accused has not been in trouble before.

• An absolute discharge means that the accused has no criminal record.
• A conditional discharge means that the accused will be on probation, with certain conditions, for a period of time. If the accused follows the rules, he or she is treated as if there were no conviction. The accused will not have a criminal record.

Suspended sentence and probation

Probation means that the accused has to follow certain conditions that the judge sets. For example, the accused will have to stay out of trouble, report to a probation officer (someone who keeps track of the accused), follow other rules that the judge has set. The accused is still convicted of the crime, but the sentence is suspended (on hold) while the accused is on a term of probation.

A suspended sentence is not a final sentence. If the accused does not follow the probation order, he or she might be sentenced to a breach of probation as well as having the suspended sentence cancelled and being sent to jail.

Fines

A judge can order that the accused pay a fine in addition to going to jail or a term of probation. The accused could be fined up to $5,000 for a summary conviction offence or more for an indictable offence. The accused must also pay a victim surcharge fine, which is an extra 15% of the fine imposed.

Restitution

An order for restitution means that the accused must make things right. For example, the accused might have to repair property damage or replace stolen property.

Conditional Sentence Order

A conditional sentence order means that the accused spends his or her jail time in the community. The sentence must be under 2 years or there is a minimum sentence. It is not available if the accused has committed a very serious crime, like terrorism.

The word “conditional” applies to the rules the offender must follow in order to stay out of jail. If the accused does not follow the conditions (rules) that the judge sets, the accused may have to spend the rest of his or her sentence in jail. For example, the accused may be given a sentence, conditional on her not taking drugs for 18 months. If she is found to be taking drugs after trial, she will spend the rest of her 18-month sentence in jail.

Jail

If it is a summary conviction offence, the maximum jail sentence is 6 months. If it is an indictable offence, the maximum sentence is 5 years, unless the Criminal Code states that the maximum sentence can be higher.

If an accused is convicted of two crimes, a judge can order that the sentences be served consecutively (one after the other) or concurrently (at the same time).

Parole

A prisoner in jail might be allowed to spend part of his or her sentence out of jail. This is called “parole”. A prisoner can ask a parole board (a committee) for parole after serving two-third of his or her sentence. There are always rules that the prisoner must follow, like staying away from drugs and alcohol.

The prisoner must report to a parole officer and be supervised when returning to the community.

Criminal Records

An adult (a person over the age of 18) who has been convicted of a crime will have a criminal record. The police, Crown prosecutors, customs offers and other government officials can read criminal records. Members of the public cannot read them.

A person with a criminal record might not be able to travel outside of Canada. For example, a person with a criminal record may be stopped at the airport when he or she is taking a trip to the United States. It may also prevent someone from getting a job.

A conviction stays on a person’s criminal record for a long time. The length of time depends on the type of crime that was committed. 

Pardons

Pardons are sometimes given by the federal government of Canada. A pardon allows people who were convicted of a criminal offence to have their criminal record kept separate and apart from other criminal records. They can do this if they have completed their sentence and shown they are law-abiding citizens.

Last reviewed: March 2016