How is a Sentence Decided?

If you plead guilty or you are found guilty of an offence after a trial, you will be "sentenced", meaning a judge will decide what your punishment will be. The type of sentence you get is up to the judge (even if you had a jury trial). Judges consider many things in deciding on a sentence and there are things they MUST consider in every case. These include things specific to the offence and things specific to the person convicted. There is always a maximum punishment that can be given and there is sometimes a minimum. The judge considers the type of offence and types of sentences usually given in similar circumstances. The judge listens to you or your lawyer and the Prosecutor about what you or they think the sentence should be and why. The judge also considers things like:

• the impact of the offence on the victim
• whether anything in the circumstances makes the offence worse (serious injury, relationship of trust between the victim and the offender, use of a weapon) and whether there is anything in the circumstances that suggests the punishment should be less, such as where a breach of your Charter rights occurred
• your criminal record, especially any convictions for similar offences
• your individual circumstances, sometimes presented in the form of a Gladue Submission or Pre-Sentence Report
• any steps you have taken since being charged to make sure something similar does not happen in the future
• any way in which you appear to be sorry for your actions
• any agreement, called a "joint submission", between the Prosecutor and you or your lawyer about what type of sentence would be appropriate

The law says that all sentences other than jail must be considered if they are reasonable in the circumstances. The Criminal Code says that a judge must pay particular attention to the circumstances of Aboriginal offenders. This section of the Criminal Code was considered by the Supreme Court of Canada in R. v. Gladue and gave rise to what we now call Gladue factors and Gladue Submissions. See What are Gladue Factors and How Do I Make a Gladue Submission.