Criminal sentencing in Canada

For offences committed prior to 2 December 2011 all life sentences and related parole ineligibility periods are served concurrently (at the same time).

There is no death penalty in Canada, making life imprisonment the most severe punishment to be imposed in the country.

However, there may be facts that did not have to be determined for the defendant's guilt to be decided (i.e. severity of a victim's injuries, motivation for the crime, etc.).

If the Crown, however, is relying on an aggravating fact or a prior conviction, the burden of proof is "beyond a reasonable doubt".

Given the high stakes for both the accused and the safety of the public, fresh evidence of post-sentence conduct is routinely admitted.

Where the Crown appeals against the sentence and the court of appeal determines that a longer period of incarceration is warranted, the court will often stay the order if the accused has been out of custody for a lengthy period of time or has fully complied with the terms of a non-carceral sentence.

The court of appeal will only order the re-incarceration of the accused in cases where the facts support it or where the additional period of incarceration is substantial.

There is virtually no case law on the constitutionality of variations rendering the probation order more onerous, such as adding terms and conditions.

Section 718 of the Criminal Code sets out the purposes of sentencing[6] and acts to protect society and to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that include one or more of a codified list of sentencing objectives,[7] as follows: There are a number of sentencing principles found in sections 718.1 and 718.2 of the Criminal Code:[6] The Supreme Court of Canada has held that widespread discrimination against Indigenous Peoples living in Canada, and the resulting adverse socio-economic factors they face, are the sources for their over-representation at all points of the criminal justice system.

[9] Accordingly, and as per section 718.2(e) of the Criminal Code, the court is required to consider all reasonable alternatives to imprisonment for all offenders, with particular attention to the circumstances of Aboriginal Peoples.

Application of this section was clarified in R. v. Gladue where the Supreme Court held that it applied to Aboriginal offenders generally, not only to those living on-reserve.

The court found as a matter of judicial notice that the Aboriginal Peoples have a long-standing disadvantage in Canadian society and the effects are felt for generations.

However, where the crime is more serious in nature, Aboriginal heritage plays a lesser role as courts will place a higher emphasis on protection of the public, denunciation and general deterrence.

There are a number of aggravating factors a judge is required to consider both at common law and by statute.

For example, section 255.1 of the Criminal Code makes it an aggravating factor if a person commits a drinking and driving offence when their blood alcohol concentration is in excess of 0.160.

If a defendant spent time in custody while awaiting his trial (that is, he was not released on bail), the judge is allowed to take that into account when determining the sentence.

[12] There used to be no specific formula, and historically judges generally gave a "2 for 1" credit for pre-trial custody.

Regarding bail breaches if a sentence is ruled then the judge must consider credit for pre-trial custody which previously were automatically refused.

When the court grants a discharge, the accused is not considered to have been convicted of the crime, notwithstanding the finding of guilt.

This finding can be used in civil proceedings and may result in refusal of entry into the United States which does not currently recognize discharges or pardons.

[30] Failure to pay the fine by the time required in the order can result in the person being found in default.

This led to gross inconsistencies so in 1995 Parliament created a fixed formula for determining the number of days of imprisonment.

This formula is determined by taking the unpaid amount and any costs associated with incarcerating the accused as the numerator and eight times the provincial minimum wage as the denominator.

Life imprisonment is also a possible maximum penalty for a range of other offences, but the sentence is only mandatory in cases of high treason or murder.

When an accused is sentenced to life imprisonment for murder or high treason, then the following parole ineligibility periods apply (which includes youths sentenced as an adult):[35] When a jury convicts a person of second-degree murder, they can recommend to the judge a parole ineligibility period, but the judge is not bound by the jury's recommendation.

[36][37] One of the first cases where the new sentencing provisions were used was a multiple murder in Edmonton, Alberta of three armoured car guards by one of their co-workers.

The perpetrator in that case was sentenced to life in prison with no chance of parole for 40 years - 25 years for one first degree murder conviction, ordered to be served consecutively to two concurrent 15-year parole ineligibility periods for two second-degree murder convictions as part of the same series of offences.

Consecutive parole ineligibility periods were also imposed in the case of serial killer John Paul Ostamas in June 2016, who was sentenced to life in prison with no chance of parole for 75 years for the second-degree murders of three homeless men in Winnipeg, Manitoba.

For instance, the delay period for an application for a criminal record suspension (formerly called a pardon) disregards any remission earned.

An accused person granted parole is still legally subject to a warrant of committal and is deemed to be "in custody."