Law Talk

After the Worst of Verdicts

February 2012

Whether you've made your own free choice to plead guilty to a crime, or you've been found guilty following a trial, guilt can be a very scary thing. Here are four things you should know if you are ever being sentenced for a crime in Canada.

1. Facts Matter

First, though you may be pleading guilty to an offence, you may not have committed it in the way the prosecution alleges. You should never plead guilty to a set of facts that did not occur, even if you are guilty of the offence itself. If you disagree with any of the facts as stated, the Crown must hold a "Gardiner Hearing", and prove that the fact happened beyond a reasonable doubt by calling evidence before you are sentenced.

2. You Matter

Before you are sentenced, you have the right to make submissions to the judge. This is your one chance to let the judge know more about you as a person beyond the crime you've been found guilty of. You can speak to a whole array of things, including your family situation, economic circumstances, upbringing, community involvement, what led you to commit the crime, and any steps you've taken to better yourself. These considerations may cause the judge to impose a more lenient or fitting sentence in your situation.

3. Discharged

Even after you've been found guilty, a judge may decide that it does not make sense to convict you. This may be because you've committed your first offence, or because the offence you are guilty of is very minor. In any event, a judge can sentence you to a discharge, a finding of guilt but not a criminal conviction, when doing so would be in your best interests, and not run contrary to the interests of the public. A judge can discharge you absolutely, meaning you are free to go, or conditionally, meaning that you must follow a probation order for a certain amount of time. If you've been conditionally discharged, make sure you follow the conditions of your probation--violating any one of them is a crime in itself. You should know that an absolute discharge will remain on your federal criminal record for 1 year, and a conditional discharge will remain for 3 years.

4. Convicted

Unfortunately a criminal conviction usually accompanies guilt. Sometimes though, a judge will convict you but suspend the passing of your sentence. Similar to a conditional discharge, a suspended sentence requires that you follow the conditions of a probation order, but will not require you to serve any time unless you violate any of the conditions.

A judge may decide that you should serve time, but that you are not a danger to the public and should serve your sentence within the community. Commonly known as "house arrest", a conditional sentence involves serving a sentence within your own residence and following certain conditions. Conditional sentences can only be imposed when your sentence less than two years, and the crime you've committed carries no minimum sentence. As always, make sure you follow your conditions if you've been given this sentence--violating any of them may result in you spending the rest of your sentence in jail.

If you are sentenced to serve jail time, you may be able to serve your sentence on evenings and weekends, adhering to probationary conditions while you're not in jail. Such an intermittent sentence can be ordered if your sentence is less than ninety days.

Finally, a judge may order you to pay a fine or restitution. While fines usually must be paid immediately, a judge can allow you time to pay depending on your unique considerations. Restitution is an amount of money that is usually paid to the victim of a crime, such as to replace property that was damaged during a criminal incident.

This column provides legal information only and is produced by the students of Community Legal Services and Pro Bono Students Canada (UWO). The information in this article is accurate as of the date of publication. If you need legal advice please contact a lawyer, community legal clinic or the Lawyer Referral Service at 1-900-565-4LRS.

Last edited: Thursday, September 5, 2013 @ 9:16 AM