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SOC346H5 (14)
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Department
Sociology
Course
SOC346H5
Professor
Nicole Myers
Semester
Winter

Description
Readings Ch.9 Sentencing Options Introduction  Since the Ouimet Report in 1969, Parliament has added some new alternatives to the sentencing matrix: discharges, intermittent sentences, and conditional sentences Diversion  Diversion is not a sentencing option since it involves removing someone from the criminal process to another forum where they are not convicted or found guilty, and are not sentenced  Required to take responsibility for their actions and expected to do something in response  Police have been doing it for years  Warning being the most rudimentary one  Offender is directed to the diversion project  An apology, community service, or reparative gesture is proposed  If performed, the police or prosecutors are informed and the charge is subsequently withdrawn  If not performed, the matter may be returned to court  The young offenders act included a specific procedure for diversion which was known as “alternative measures”  “Alternative measures” for adults was added to the Criminal Code in 1996 through the enactment of section 717  Offender must be given an opportunity to consult counsel, must admit responsibility, and must consent to participation  Prosecutor must have “sufficient evidence to proceed with the prosecution of the offence Discharges and the Ouimet Committee  The 1969 report of the Ouimet Committee on Corrections expressed concern about the “handicaps that accompany a criminal record” and recommended that courts have the power, after considering the “nature of the charge and the character of the accused” to decide not to record a conviction after a finding of guilt The Criminal Code Provisions  If a person is discharged with conditions, those are controlled by a probation order under section 731(2). During the currency of that order, if the person is convicted of another offence, including the offence of breaching the probation order, he or she may be brought back to court on the original charge, at which time a conviction can be entered and a sentence imposed.  The only offences excluded from the discharge provisions are those requiring a minimum penalty or those punishable by life or fourteen years imprisonment  The fact that a conviction would not present immediate negative consequences to the offender is no reason to deny a discharge; implicitly, the benefit to the individual is the ability to go through life without the stamp of a conviction Public Interest vs. Immigration Status  Courts commonly hear the argument that an individual’s immigration status may be affected by a conviction  There is also the concern that anyone awaiting determination of immigration status may be prejudiced by the fact of a criminal conviction even if it does not move the individual into an inadmissible category  The relation between immigration status and discharges and have generally held that the negative consequence does not, by itself, justify a discharge.  The sentencing court should be prepared to contemplate a discharge even if the offence on its face may suggest some reason to consider general deterrence or denunciation, sometimes, the denunciation can be achieved in other ways.  The importance of employment to social integration, when a criminal conviction would disentitle the offender from continuing an occupation or pursuing one for which some commitment has been shown, courts should be careful not to overstate the public interest in a conviction  The argument for a discharge is diminished if there is a link between the conduct which produced the offence and the occupation or employment in issue. The Effect of Diversion  The Criminal Records Act deals expressly with the discharge record and provides limits on disclosure  6.1(1) no record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister if: a) more than one year has elapsed since the offender was discharged absolutely; or b) more than 3 years have elapsed since the offender was discharged on the conditions prescribed in a probation order c) the commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1)  A discharge record cannot be disclosed on year after an absolute discharge and three years after the expiry of the conditions attached to a conditional discharge without Ministerial approval. The Criminal Code Provisions  If a person is discharged with conditions, those are controlled by a probation order under section 731(2). During the currency of that order, if the person is convicted of another offence, including the offence of breaching the probation order, he or she may be brought back to court on the original charge, at which time a conviction can be entered and a sentence imposed  The only offences excluded from the discharge provisions are those requiring a minimum penalty or those punishable by life or fourteen years imprisonment  The fact that a conviction would not present immediate negative consequences to the offender is no reason to deny a discharge, implicitly the benefit to the individual is the ability to go through life without the stamp of a conviction Public Interest vs. Immigration Status  Courts commonly hear the argument that an individual’s immigration status may be affected by a conviction  There is also the concern that anyone awaiting determination of immigration status may be prejudiced by the fact of a criminal conviction even if it does not move the individual into an inadmissible category  The relation between immigration status and discharges and have generally held that the negative consequence does not, by itself, justify a discharge.  The sentencing court should be prepared to contemplate a discharge even if the offence on its face may suggest some reason to consider general deterrence or denunciation; sometimes, the denunciation can be achieved in other ways.  The argument for a discharge is diminished if there is a link between the conduct which produced the offence and the occupation or employment in issue  The Criminal Records Act deals expressly with the discharge record and provides limits on disclosure: 6.1(1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commission or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister if a) More than 1 year has elapsed since the offender was discharged absolutely; or b) More than 3 years have elapsed since the offender was discharged on the conditions prescribed in a probation order c) The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection d) A discharge record cannot be disclosed one year after an absolute discharge and 3 years after the expiry of the conditions attached to a conditional discharge without Ministerial approval. Eligibility of Probation  3 routes to probation  first he passing of a sentence may be suspended and the offender placed on probation pursuant to section 739(1)(a) which proves: a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the condition prescribed in a probation order;  Looking at the underlying offence, the only restriction on a suspended sentence is that the offence does not carry a minimum penalty  Court should take into account “age and character”  No first offender requirement  731 (1)(a) must stand alone, and the sentencing judge cannot add a fine to it  Second kind of probation order is covered by section 731 (1)(b) which proves that a probation order can be imposed “in addition to fining or sentencing the offender to imprisonment for a term not exceeding 2 years”  Term of imprisonment cannot be more than 2 years  Prisoners released from longer sentences would be subject to supervision by federal parole officers  Probation cannot be added to sentences which individually are less than 2 years but, when added together, require the offender to serve an aggregate term that exceeds 2 years.  3 kind of probation order is authorized by section 732 (1)(b) which governs intermittent sentences. During the non-custodial periods between the specified times when the person is in custody serving a sentence intermittently, the person must be on probation and must conform with the terms of a probation order The Commencement and Duration of a Probation Order  A probation order under section 731 (1)(a) is part of a suspended sentence and usually commences when it is imposed  Order is made under section 731 (1)(b) and is attached to a sentence of imprisonment, or the offender is already subject to a term of imprisonment of less than 2 years, the period of probation commences after the sentence of imprisonment  If the underlying sentence was the maximum sentence of two years, it would be served in a penitentiary and the offender would either be released on parole or on statutory release after serving two-thirds of the sentence.  The Criminal Code merely provided that the probation would commence upon expiry of the sentence. If the probation period commenced upon release from custody, it would overlap with conditional release supervision for federal prisoners.  Section 732.2(1)(b) now provides that a probation order commences “as soon as the offender is released from prison or, if released from prison on conditional release, at the expiration of the sentence of imprisonment”  If the offender is subject to conditional release, either parole or statutory release, then the probation order does not come into effect until the warrant expiry date  If a person on probation is subsequently incarcerated either in default of payment of a fine or because of a new sentence of imprisonment, the probation term continues to run except that compliance with some conditions may be impossible, and thus unenforceable, during that period.  Section 732.2(2)(b) provides that “no probation order shall continue in force for more than three years after the date on which the order came into force”  Following the Ouimet recommendation, 3 years is the maximum duration of a probation order  Can, be extended for a year if the probation order is part of a suspended sentence and the offender commits another offence  The court that made the probation order may, after hearing from the “offender and one or both of the probation officer and the prosecutor” vary any of the optional conditions based on “a change in the circumstances;” relieve the o
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