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| Purpose
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718. The fundamental purpose of
sentencing is to contribute, along with crime
prevention initiatives, to respect for the law
and the maintenance of a just, peaceful and
safe society by imposing just sanctions that
have one or more of the following objectives:
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(a) to denounce unlawful conduct;
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(b) to deter the offender and other persons
from committing offences;
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(c) to separate offenders from society,
where necessary;
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(d) to assist in rehabilitating offenders;
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(e) to provide reparations for harm done to
victims or to the community; and
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(f) to promote a sense of responsibility in
offenders, and acknowledgment of the
harm done to victims and to the community.
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| Fundamental
principle
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718.1 A sentence must be proportionate to
the gravity of the offence and the degree of
responsibility of the offender.
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| Other
sentencing
principles
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718.2 A court that imposes a sentence shall
also take into consideration the following
principles:
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(a) a sentence should be increased or
reduced to account for any relevant
aggravating or mitigating circumstances
relating to the offence or the offender, and,
without limiting the generality of the
foregoing,
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(i) evidence that the offence was
motivated by bias, prejudice or hate
based on race, national or ethnic origin,
language, colour, religion, sex, age,
mental or physical disability, sexual
orientation or any other similar factor,
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(ii) evidence that the offender, in
committing the offence, abused the
offender's spouse or child, or
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(iii) evidence that the offender, in
committing the offence, abused a
position of trust or authority in relation to
the victim
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shall be deemed to be aggravating
circumstances;
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(b) a sentence should be similar to sentences
imposed on similar offenders for similar
offences committed in similar
circumstances;
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(c) where consecutive sentences are
imposed, the combined sentence should not
be unduly long or harsh;
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(d) an offender should not be deprived of
liberty, if less restrictive sanctions may be
appropriate in the circumstances; and
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(e) all available sanctions other than
imprisonment that are reasonable in the
circumstances should be considered for all
offenders, with particular attention to the
circumstances of aboriginal offenders.
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| Degrees of
punishment
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718.3 (1) Where an enactment prescribes
different degrees or kinds of punishment in
respect of an offence, the punishment to be
imposed is, subject to the limitations
prescribed in the enactment, in the discretion
of the court that convicts a person who
commits the offence.
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| Discretion
respecting
punishment
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(2) Where an enactment prescribes a
punishment in respect of an offence, the
punishment to be imposed is, subject to the
limitations prescribed in the enactment, in the
discretion of the court that convicts a person
who commits the offence, but no punishment
is a minimum punishment unless it is declared
to be a minimum punishment.
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| Imprisonment
in default
where term
not specified
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(3) Where an accused is convicted of an
offence punishable with both fine and
imprisonment and a term of imprisonment in
default of payment of the fine is not specified
in the enactment that prescribes the
punishment to be imposed, the imprisonment
that may be imposed in default of payment
shall not exceed the term of imprisonment that
is prescribed in respect of the offence.
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| Cumulative
punishments
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(4) Where an accused
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(a) is convicted while under sentence for an
offence, and a term of imprisonment
whether in default of payment of a fine or
otherwise, is imposed,
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(b) is convicted of an offence punishable
with both fine and imprisonment and both
are imposed, or
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(c) is convicted of more offences than one
before the same court at the same sittings,
and
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(i) more than one fine is imposed,
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(ii) terms of imprisonment for the
respective offences are imposed, or
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(iii) a term of imprisonment is imposed in
respect of one offence and a fine is
imposed in respect of another offence,
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the court that convicts the accused may direct
that the terms of imprisonment that are
imposed by the court or result from the
operation of subsection 734(4) shall be served
consecutively.
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| Idem
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(5) Where an offender who is under a
conditional sentence imposed under section
742.1 is convicted of a second offence that was
committed while the offender was under the
conditional sentence,
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(a) a sentence of imprisonment imposed for
the second offence shall be served
consecutively to the conditional sentence;
and
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(b) the offender shall be imprisoned until
the expiration of the sentence imposed for
the second offence, or for any longer period
resulting from the operation of
subparagraph 742.6(9)(c)(i) or paragraph
742.6(9)(d).
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| Commenceme
nt of sentence
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719. (1) A sentence commences when it is
imposed, except where a relevant enactment
otherwise provides.
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| Time at large
excluded from
term of
imprisonment
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(2) Any time during which a convicted
person is unlawfully at large or is lawfully at
large on interim release granted pursuant to
any provision of this Act does not count as part
of any term of imprisonment imposed on the
person.
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| Determination
of sentence
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(3) In determining the sentence to be
imposed on a person convicted of an offence,
a court may take into account any time spent
in custody by the person as a result of the
offence.
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| When time
begins to run
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(4) Notwithstanding subsection (1), a term
of imprisonment, whether imposed by a trial
court or the court appealed to, commences or
shall be deemed to be resumed, as the case
may be, on the day on which the convicted
person is arrested and taken into custody under
the sentence.
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| When fine
imposed
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(5) Notwithstanding subsection (1), where
the sentence that is imposed is a fine with a
term of imprisonment in default of payment,
no time prior to the day of execution of the
warrant of committal counts as part of the term
of imprisonment.
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| Application
for leave to
appeal
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(6) An application for leave to appeal is an
appeal for the purposes of this section.
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| Sentencing
proceedings
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720. A court shall, as soon as practicable
after an offender has been found guilty,
conduct proceedings to determine the
appropriate sentence to be imposed.
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| Report by
probation
officer
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721. (1) Subject to regulations made under
subsection (2), where an accused, other than a
corporation, pleads guilty to or is found guilty
of an offence, a probation officer shall, if
required to do so by a court, prepare and file
with the court a report in writing relating to the
accused for the purpose of assisting the court
in imposing a sentence or in determining
whether the accused should be discharged
pursuant to section 730.
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| Provincial
regulations
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(2) The lieutenant governor in council of a
province may make regulations respecting the
types of offences for which a court may
require a report, and respecting the content
and form of the report.
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| Content of
report
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(3) Unless otherwise specified by the court,
the report must, wherever possible, contain
information on the following matters:
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(a) the offender's age, maturity, character,
behaviour, attitude and willingness to make
amends;
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(b) the history of previous dispositions
under the Young Offenders Act and of
previous findings of guilt under this Act and
any other Act of Parliament;
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(c) the history of any alternative measures
used to deal with the offender, and the
offender's response to those measures; and
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(d) any matter required, by any regulation
made under subsection (2), to be included in
the report.
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| Idem
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(4) The report must also contain
information on any other matter required by
the court, after hearing argument from the
prosecutor and the offender, to be included in
the report, subject to any contrary regulation
made under subsection (2).
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| Victim impact
statement
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722. (1) For the purpose of determining the
sentence to be imposed on an offender or
whether the offender should be discharged
pursuant to section 730 in respect of any
offence, the court shall consider any statement
that may have been prepared in accordance
with subsection (2) of a victim of the offence
describing the harm done to, or loss suffered
by, the victim arising from the commission of
the offence.
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| Procedure for
victim impact
statement
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(2) A statement referred to in subsection (1)
must be
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(a) prepared in writing in the form and in
accordance with the procedures established
by a program designated for that purpose by
the lieutenant governor in council of the
province in which the court is exercising its
jurisdiction; and
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(b) filed with the court.
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| Other
evidence
concerning
victim
admissible
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(3) A statement of a victim of an offence
prepared and filed in accordance with
subsection (2) does not prevent the court from
considering any other evidence concerning
any victim of the offence for the purpose of
determining the sentence to be imposed on the
offender or whether the offender should be
discharged pursuant to section 730.
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| Definition of
``victim''
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(4) For the purposes of this section,
``victim'', in relation to an offence,
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(a) means the person to whom harm was
done or who suffered physical or emotional
loss as a result of the commission of the
offence; and
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(b) where the person described in paragraph
(a) is dead, ill or otherwise incapable of
making a statement referred to in
subsection (1), includes the spouse or any
relative of that person, anyone who has in
law or fact the custody of that person or is
responsible for the care or support of that
person or any dependant of that person.
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| Copies of
documents
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722.1 The clerk of the court shall provide a
copy of a document referred to in section 721
or subsection 722(1), as soon as practicable
after filing, to the offender or counsel for the
offender, as directed by the court, and to the
prosecutor.
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| Submissions
on facts
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723. (1) Before determining the sentence, a
court shall give the prosecutor and the
offender an opportunity to make submissions
with respect to any facts relevant to the
sentence to be imposed.
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| Submission of
evidence
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(2) The court shall hear any relevant
evidence presented by the prosecutor or the
offender.
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| Production of
evidence
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(3) The court may, on its own motion, after
hearing argument from the prosecutor and the
offender, require the production of evidence
that would assist it in determining the
appropriate sentence.
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| Compel
appearance
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(4) Where it is necessary in the interests of
justice, the court may, after consulting the
parties, compel the appearance of any person
who is a compellable witness to assist the
court in determining the appropriate sentence.
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| Hearsay
evidence
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(5) Hearsay evidence is admissible at
sentencing proceedings, but the court may, if
the court considers it to be in the interests of
justice, compel a person to testify where the
person
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(a) has personal knowledge of the matter;
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(b) is reasonably available; and
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(c) is a compellable witness.
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| Information
accepted
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724. (1) In determining a sentence, a court
may accept as proved any information
disclosed at the trial or at the sentencing
proceedings and any facts agreed on by the
prosecutor and the offender.
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| Jury
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(2) Where the court is composed of a judge
and jury, the court
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(a) shall accept as proven all facts, express
or implied, that are essential to the jury's
verdict of guilty; and
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(b) may find any other relevant fact that was
disclosed by evidence at the trial to be
proven, or hear evidence presented by
either party with respect to that fact.
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| Disputed facts
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(3) Where there is a dispute with respect to
any fact that is relevant to the determination of
a sentence,
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(a) the court shall request that evidence be
adduced as to the existence of the fact
unless the court is satisfied that sufficient
evidence was adduced at the trial;
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(b) the party wishing to rely on a relevant
fact, including a fact contained in a
presentence report, has the burden of
proving it;
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(c) either party may cross-examine any
witness called by the other party;
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(d) subject to paragraph (e), the court must
be satisfied on a balance of probabilities of
the existence of the disputed fact before
relying on it in determining the sentence;
and
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(e) the prosecutor must establish, by proof
beyond a reasonable doubt, the existence of
any aggravating fact or any previous
conviction by the offender.
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| Other
offences
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725. (1) In determining the sentence, a court
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(a) shall consider, if it is possible and
appropriate to do so, any other offences of
which the offender was found guilty by the
same court, and shall determine the
sentence to be imposed for each of those
offences;
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(b) shall consider, with the consent of the
offender and the Attorney General, any
outstanding charges against the offender to
which the offender consents to plead guilty
and pleads guilty, if the court has
jurisdiction to try those charges, and shall
determine the sentence to be imposed for
each charge, unless the court is of the
opinion that a separate prosecution for the
other offence is necessary in the public
interest; and
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(c) may consider any facts forming part of
the circumstances of the offence that could
constitute the basis for a separate charge.
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| No further
proceedings
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(2) The court shall note any facts considered
in determining the sentence under paragraph
(1)(c) on the information or indictment and no
further proceedings may be taken with respect
to the other offence unless the conviction for
the offence of which the offender has been
found guilty is set aside or quashed on appeal.
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| Offender may
speak to
sentence
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726. Before determining the sentence to be
imposed, the court shall ask whether the
offender, if present, has anything to say.
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| Relevant
information
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726.1 In determining the sentence, a court
shall consider any relevant information placed
before it, including any representations or
submissions made by or on behalf of the
prosecutor or the offender.
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| Reasons for
sentence
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726.2 When imposing a sentence, a court
shall state the terms of the sentence imposed,
and the reasons for it, and enter those terms
and reasons into the record of the proceedings.
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| Previous
conviction
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727. (1) Subject to subsections (3) and (4),
where an offender is convicted of an offence
for which a greater punishment may be
imposed by reason of previous convictions, no
greater punishment shall be imposed on the
offender by reason thereof unless the
prosecutor satisfies the court that the offender,
before making a plea, was notified that a
greater punishment would be sought by reason
thereof.
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| Procedure
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(2) Where an offender is convicted of an
offence for which a greater punishment may
be imposed by reason of previous convictions,
the court shall, on application by the
prosecutor and on being satisfied that the
offender was notified in accordance with
subsection (1), ask whether the offender was
previously convicted and, if the offender does
not admit to any previous convictions,
evidence of previous convictions may be
adduced.
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| Where
hearing ex
parte
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(3) Where a summary conviction court
holds a trial pursuant to subsection 803(2) and
convicts the offender, the court may, whether
or not the offender was notified that a greater
punishment would be sought by reason of a
previous conviction, make inquiries and hear
evidence with respect to previous convictions
of the offender and, if any such conviction is
proved, may impose a greater punishment by
reason thereof.
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