If you have been found guilty, the fight to limit the consequences of your conviction is not over. Hiring an experienced criminal defence lawyer to make submissions on your behalf at a sentencing hearing helps to ensure that the severity of the penalty you receive aligns with your level of blameworthiness for the offence. Strong submissions on sentencing also allow the Court to consider your potential for rehabilitation and the effects that a penalty will have on your family, personal and professional life.
When does a sentencing hearing occur?
What principles will guide the decision of the sentencing judge?
What kinds of evidence can be heard at a sentencing hearing?
Are you an Immigrant to Canada who is being sentenced?
A sentencing hearing occurs after you have been found guilty following a trial, or you have plead guilty. Typically, in the case of a plea, sentencing will occur directly after you have plead guilty in court. If you have agreed to a plea deal, both your lawyer and the Crown will likely make a joint submission on the sentence that has been agreed, and a judge will have to approve it. In the case of being found guilty after a trial, the timing of your sentencing depends on the complexity of your case. A judge may choose to hear sentencing submissions immediately after handing down their verdict, or they may arrange a later date for the sentencing hearing.
To summarize the above, the penalty that a sentencing judge arrives at must sufficiently accomplish the goals of denunciation, deterrence, the protection of society, and the rehabilitation of the offender, while also offering some acknowledgement or help to repair the harm done to victims and the community.
A judge’s decision on sentence is further constrained by s. 718.1 of the Criminal Code, which states that the fundamental principle a judge must consider is that the penalty must be proportionate to the gravity of the offence and the degree of responsibility of the offender. What this means is that whatever penalty the judge believes to accord with the principles outlined above (denunciation, deterrence, etc.), it must also suit the severity of the offence committed and the amount of responsibility that is attributed to the offender.
Note that the above list does not exhaust the number of factors that may increase your sentence. A judge retains the power to treat whatever factual details they want as either aggravating or mitigating. Examples of mitigating factors include: evidence that the offender is remorseful and regrets what they did, the age or mental capacity of the offender, evidence of co-operation with authorities, amongst others. If these factors are present in your case, they may serve to lessen the severity of the penalty you receive.
At the sentencing stage, the rules of evidence are relaxed, as the sentencing judge wants to know as much information as possible about the circumstances of the accused and the offence for which they have been convicted. Since judges consider a much broader range of evidence at sentencing, how they will interpret various types of evidence and its effect on the outcome can be very difficult to predict.
Note that the above list only offers some examples of the type of evidence that can be brought at a sentencing hearing. Due to the relaxed rules of evidence at the sentencing stage, there are few limits on the type of evidence that can be brought. If you believe that a piece of evidence will help to inform the judge of your circumstances as an offender, and the evidence is credible, it will likely be admissible at sentencing.
If you are an immigrant to Canada and you are not yet a citizen, it is imperative that you obtain the services of a criminal defence lawyer who is aware of the consequences a penalty will have on your immigration status. If a certain penalty will result in your deportation from Canada, that is a fact that the sentencing judge must be made aware of, to ensure that the sentence they hand down does not conflict with s. 12 of the Canadian Charter of Rights and Freedoms, which includes the right to not be subjected to any cruel or unusual punishment. Sometimes, lawyers who specialize only in criminal law will not consider the immigration ramifications of their client’s sentence, and the client receives a sentence that forces them to leave Canada. DUVADIE Law practices both criminal and immigration law, and has considerable expertise regarding how the two fields interact. We will be sure that the sentencing judge is aware of the immigration consequences that will result from any penalty you receive.
If you have been charged or convicted of an offence, please contact DUVADIE Law at (613) 422-1155 or Toll-Free 1 (855) 422-1155 as soon as possible so that we can begin working on your behalf.