Legal Studies 3080

The Sentencing Process

Deciding on an appropriate sentence after an accused has been found guilty of an offence is one of the most difficult things a judge has to do. The judge must balance the safety of the community - and the community's sense that justice has been done - with the best interests of the offender.

This can be a very tricky task. A judge may, for instance, believe that a jail sentence would only turn a youthful offender into a hardened criminal who would cause society a great deal of harm once released. The public, meanwhile, might be calling for a lengthy jail sentence to serve the young criminal right and to lock him or her up so that no one else can be harmed.

To help with the task of making decisions on sentencing, judges turn to a number of sources. They may first order a pre-sentence report - a report prepared by a probation officer, which outlines such things as the offender's work record, education, family situation, health, and attitudes. A pre-sentence report will also make recommendations as to the type of sentence the offender should receive.

The next important piece of information judges consider is the offender's previous criminal record. The Crown presents this information to the judge along with a recommendation for sentencing.

Teacher's Note
 Do you remember Kevin, the young man convicted of two counts of dangerous driving causing death? At Kevin's trial, the Crown had asked for a sentence of 8 to 14 months in prison due to the seriousness of the case. The Crown felt that this would send a message to other young people and so act as a deterrent to similar behavior. The judge, however, rejected this recommendation.

In recent years, an increasing amount of use has been made of victim impact statements . Put simply, victim impact statements allow the victims of crimes (and sometimes other people, such as family members) to explain the effect the crimes have had on their lives.

Something to Think About

Victim impact statements can be disturbing accounts of how crimes have devastated the lives of those affected. Judges have traditionally tried to make sentencing decisions based on reason and a dispassionate assessment of the case. Do you think it is a good idea to give victims of crime the chance to affect judges' decisions with impact statements? Give reasons for your answer.

Suggested Answer: Most people seem to approve of giving victims of crime increased input into the sentencing process by way of victim impact statements. Still, the danger is there that this sort of thing can increase the retributive element of sentencing at the expense, perhaps, of the rehabilitative one. Judges, of course, are professionals with a great deal of experience in sentencing, so they should not be swayed greatly by impact statements; the statements should serve as simply one more source of information for judges to use in determining appropriate sentences.

                    While victims of crimes and their families often want to see those who have wronged them punished severely, this is not always the case. The turning point in the sentencing decision in Kevin's case, for example, came when the victim's families read a statement that they had prepared for the judge not to send Kevin to prison. The families felt that Kevin had suffered enough and that he would have to live with what he had done for the rest of his life. The judge was so moved that he chose to sentence Kevin to 750 hours of community service and three years probation.

In helping the judge reach a sentencing decision, the Crown prosecutor may provide other information that he or she thinks is relevant in the case. If the defence lawyer disagrees with the Crown, the Crown will be asked to substantiate the information. Offenders themselves will also have an opportunity to make a statement to the court. In it, they may explain what caused them to commit their crimes and how they have tried to turn their lives around since. The Crown has the same right as the defence to question the validity of such statements and ask for substantiation.

In 1987 the Canadian Sentencing Commission was set up to study sentencing and ways of improving it. From the commission's report came a number of recommendations as to what judges should consider when sentencing. Following are some of the suggested points to consider:

  • whether the offender had previous convictions
  • whether the victim provoked the offence
  • whether the victim suffered substantial financial loss
  • whether the offender was under stress at the time
  • whether the offender has made restitution (repayment) to the victim