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Bill C-41

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Royal Assent

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	Purpose and Principles of Sentencing
Purpose	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:
	(a) to denounce unlawful conduct;
	(b) to deter the offender and other persons from committing offences;
	(c) to separate offenders from society, where necessary;
	(d) to assist in rehabilitating offenders;
	(e) to provide reparations for harm done to victims or to the community; and
	(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Fundamental principle	718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles	718.2 A court that imposes a sentence shall also take into consideration the following principles:
	(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,
	(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,
	(ii) evidence that the offender, in committing the offence, abused the offender's spouse or child, or
	(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim
	shall be deemed to be aggravating circumstances;
	(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
	(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
	(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
	(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.
	Punishment Generally
Degrees of punishment	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.
Discretion respecting punishment	(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.
Imprisonment in default where term not specified	(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.
Cumulative punishments	(4) Where an accused
	(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,
	(b) is convicted of an offence punishable with both fine and imprisonment and both are imposed, or
	(c) is convicted of more offences than one before the same court at the same sittings, and
	(i) more than one fine is imposed,
	(ii) terms of imprisonment for the respective offences are imposed, or
	(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence,
	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.
Idem	(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,
	(a) a sentence of imprisonment imposed for the second offence shall be served consecutively to the conditional sentence; and
	(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).
Commenceme nt of sentence	719. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
Time at large excluded from term of imprisonment	(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.
Determination of sentence	(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.
When time begins to run	(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.
When fine imposed	(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.
Application for leave to appeal	(6) An application for leave to appeal is an appeal for the purposes of this section.
	Procedure and Evidence
Sentencing proceedings	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.
Report by probation officer	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.
Provincial regulations	(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.
Content of report	(3) Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters:
	(a) the offender's age, maturity, character, behaviour, attitude and willingness to make amends;
	(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;
	(c) the history of any alternative measures used to deal with the offender, and the offender's response to those measures; and
	(d) any matter required, by any regulation made under subsection (2), to be included in the report.
Idem	(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).
Victim impact statement	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.
Procedure for victim impact statement	(2) A statement referred to in subsection (1) must be
	(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
	(b) filed with the court.
Other evidence concerning victim admissible	(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.
Definition of ``victim''	(4) For the purposes of this section, ``victim'', in relation to an offence,
	(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
	(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.
Copies of documents	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.
Submissions on facts	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.
Submission of evidence	(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.
Production of evidence	(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.
Compel appearance	(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.
Hearsay evidence	(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
	(a) has personal knowledge of the matter;
	(b) is reasonably available; and
	(c) is a compellable witness.
Information accepted	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.
Jury	(2) Where the court is composed of a judge and jury, the court
	(a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and
	(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.
Disputed facts	(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
	(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;
	(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
	(c) either party may cross-examine any witness called by the other party;
	(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
	(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.
Other offences	725. (1) In determining the sentence, a court
	(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;
	(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
	(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.
No further proceedings	(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.
Offender may speak to sentence	726. Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say.
Relevant information	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.
Reasons for sentence	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.
Previous conviction	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.
Procedure	(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.
Where hearing ex parte	(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.

Bill C-41

Purpose and Principles of Sentencing

Punishment Generally

Procedure and Evidence