Criminal Defence Lawyer in Edmonton: Explaining Offence Types and Sentences
There are three types of offences, which determine the type of court process applicable to your case and the potential sentence resulting if convicted. These are:
- Summary conviction offences;
- Indictable offences; and
- Hybrid offences.
Summary conviction offences are the least serious kind of offence in criminal law. These cases are absolute jurisdiction offences. In other words, you do not have the right to a jury trial. The cases are heard in Provincial Court. The cases are usually straight forward and are not usually scheduled for more than a day of trial. For these charges, the police cannot take your fingerprints.
Indictable offences in Canada are considered more serious and include theft over $5,000, break and enter, aggravated sexual assault and murder. There is no limitation period for indictable offences, which means that police can charge you many years after the offence. You must appear in court for all aspects and appearances in your case, unless you have signed a designation with your lawyer. You may not need to appear for minor scheduling appearances but your attendance is necessary for motions, the preliminary inquiry, and the trial and sentencing. You are not required to testify in a criminal case. In any criminal case, the Crown cannot call upon you to testify or give evidence.
Hybrid offences include a combination of the first two offences. Hybrid offences can be dealt with as summary or indictable offences, and they are often dealt with as summary conviction offences. The decision to proceed by summary conviction or by indictment is the sole discretion of the prosecutor. They elect how they are proceeding: by summary conviction or by indictment.
Sentences are tied to the offence types, with each type having a range of penalties. Summary conviction offences are dealt with in Provincial Court and carry a maximum $5,000 fine and/or six months in jail. The Courts may consider a conditional sentence in some cases where you may be placed on house arrest in the community as opposed to serving your sentence in jail.
Some offences have higher maximum sentences depending on the seriousness of the crime. Indictable offence penalties vary depending on the seriousness of the offence. The range of penalty can be a conditional discharge (no record), probation, a fine to life imprisonment depending on the offence and the penalty provisions of the particular offence. Some indictable offences have mandatory minimum offences. For example, some narcotics and trafficking offences may include a mandatory minimum penalty of one years’ imprisonment and can have maximum terms of imprisonment of five, ten or life imprisonment depending on the charge. Unless an indictable offence is one of absolute jurisdiction, you have a right to elect to be tried by a Provincial Court Judge, a Supreme Court Justice without a jury or a Supreme Court Justice with a jury.
Hybrid offence penalties depend on the prosecutor’s election, which means that the prosecutor has the choice to treat the matter as a summary or indictable offence, depending on the seriousness of the offence or possibly the totality of the offences charged with. If the summary process is elected, then the trial is held in Provincial Court. If the indictable process is elected, then you will most likely have the choice to proceed in Provincial Court or Supreme Court. The prosecution’s election determines the maximum penalty for the offence. Some hybrid offences (called absolute jurisdiction offences) always proceed in Provincial Court (e.g., theft under $5,000) whether the prosecution chooses to proceed as a summary conviction or indictable offence.
In some cases, a conditional sentence may be possible for the offender. Pursuant to 742.1 of the Criminal Code of Canada, a conditional sentence is one that is served in the community, instead of in jail. This type of sentence was designed as a means to reduce the incarceration rate of adults in Canadian prisons and is only available when the sentence is less than two years. Generally, a conditional sentence will only be granted if the court is satisfied that the defendant will not be a danger to the community. Strict conditions usually apply to conditional sentences, including a curfew. An offender who breaches any mandatory or optional conditions attached to the sentence order may be required to finish serving the term in a correctional facility.
Conditional sentences are not unavailable in certain cases. For example, if the offence is punishable by a minimum term of imprisonment, or if the offence is a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more. In addition, there are certain offences, which, if prosecuted by indictment, are expressly excluded from eligibility for conditional sentences. This list includes prison breach (s. 144 of the Code), criminal harassment (s. 264 of the Code), sexual assault (s. 271 of the Code), kidnapping (s. 279 of the Code), trafficking in persons-material benefit (s. 279.02 of the Code) and abduction of person under 14 (s. 281 of the Code), as well as a number of property offences. Many narcotics and drug offences are no longer eligible for conditional sentences. Crimes of violence are also ineligible for a conditional sentence in most cases.
Suspended Sentence with a Probation Order
A probation order is a sentence that is also served in the community. While the offender is still convicted of the offence, their sentence is suspended and they are released on probation. Generally, this order will require the offender to follow certain conditions for a period, which can last up to three years. This usually requires keeping the peace, being of good behaviour, reporting regularly to a probation officer, and keeping the probation officer informed of a current address. Depending on the type of offence, this order may also involve some personal reporting, such as alcohol or drug testing, counseling, or community service. A breach of any of these terms would mean the cancelling of probation and the requirement to serve out the original fail term. Probation can in some cases be combined with other penalties, including a fine, a discharge, or a jail term less than two years.
A discharge is the most lenient type of sentence following a finding of guilt. Essentially, the offender is found guilty, but is then discharged without an actual conviction. Discharges can be either absolute or conditional. Most discharges are conditional. An absolute discharge means that no criminal record will be on file, effective immediately with no probation. A conditional discharge will require certain probation conditions for a set period. A conditional discharge remains on your record for three years and is then purged. This allows authorities to monitor a person’s behaviour for this time.
Additional Powers of the Court
If the judge has given a conditional sentence, probation, or a conditional discharge, there are additional powers at their disposal to ensure compliance. The judge may make a prohibitive “no contact order” to ensure that the defendant has no contact with a particular person or place. They can make an order prohibiting the offender from you from having any firearms or other weapons in their possession. Further, they can make a compensation order allowing a person whose property you damaged to sue you in civil court.
Principles of Sentencing
Regardless of the type of offence, there is a set of principles which must be taken into account before the appropriate sentence can be handed down. These principles are enshrined in s. 718. Of the Criminal Code of Canada and serve as a guideline to judges. They represent a statement of principles that give direction to our penal laws and sanctions, and include the following goals;
- Denunciation: making sure the punishment reflects society’s abhorrence for the crime committed;
- Deterrence (both specific for the accused and general for the population at large): to reduce criminal conduct;
- Rehabilitation: to change the behaviour of an offender and reconstitute them as productive citizens;
- Protection of the public: through incarceration and/or the imposition of conditions to control the accused’s behaviour in the community and to prevent the repetition of the criminal activity;
- Reparation: to repay, repair or compensate the victim or community loss and harm; and
- Responsibility: for the offender to acknowledge the harm done to the victim and the community.
In addition to these goals, sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. For example, if the offence was a ‘hate crime’ motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, the sentence may be increased as a deterrent effect. Another example would be the reducing of a sentence when less restrictive sanctions may be appropriate in the circumstances of the offender’s case. An extremely important discretionary consideration should also be made if the offender is Aboriginal, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered in those particular instances.
Anyone convicted of a crime may apply for a record suspension (formerly called a Pardon) when they are eligible. For a summary conviction offence, a person is eligible to apply for a record suspension five years from the completion of their sentence. This starts five years from the completion of the payment of a fine, the expiry of probation or firearms prohibition, driving prohibition or any other part of the sentence. The eligibility for an indictable offence is the same except the waiting period is ten years from the completion of the sentence.
Rod Gregory – Experienced Criminal Defence Lawyer in Edmonton, Grand Prairie, and Western Canada
If you have been charged with a criminal offence of the Criminal Code of Canada or a narcotics office under the Controlled Drugs and Substances Act, Rod Gregory is the criminal defence lawyer in Edmonton, whom can help you. He will provide you with legal advice related to your situation and represent you in court. Contact him today to find out how he can help you with your criminal offence.