CRIMINAL LAW SENTENCING - Law Society of...

Revised May 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.

CRIMINAL LAW SENTENCING

The Honorable Judge R. Green Provincial Court of Saskatchewan

Yorkton, Saskatchewan

The Honorable Judge E. Kalenith Provincial Court of Saskatchewan

Meadow Lake, Saskatchewan

Saskatchewan: Bar Admission Program i Criminal Procedure – Sentencing

Revised June 2005 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.

TABLE OF CONTENTS

I. TYPES OF SENTENCE ....................................................................................................... 1 A. ABSOLUTE DISCHARGE .......................................................................................... 1 B. SUSPENDED SENTENCE AND PROBATION......................................................... 2 C. FINES .............................................................................................................................. 4

1. Default Time .............................................................................................................. 5 2. Victim Fine Surcharge............................................................................................... 6 3. Fine Option Program ................................................................................................. 6

D. IMPRISIONMENT......................................................................................................... 7 E. CONDITIONAL SENTENCE OF IMPRISONMENT .............................................. 10 F. RESTITUTION AND COMPENSATION.................................................................. 15 G. PROHIBITION ORDERS............................................................................................ 16

1. Driving Prohibition.................................................................................................. 16 2. Firearm Prohibition.................................................................................................. 17 3. Non-attendance Order ............................................................................................. 19

H. PARDONS .................................................................................................................... 19 I. ALTERNATIVE MEASURES ..................................................................................... 20 J. DNA ORDERS............................................................................................................... 21

II. SENTENCING PRINCIPLES............................................................................................ 22 III. PROCEDURE AND EVIDENCE...................................................................................... 24

A. USUAL PROCEDURE AT SENTENCING............................................................... 24 B. ROLE OF COUNSEL................................................................................................... 25 C. THE SENTENCING OF ABORIGINAL OFFENDERS........................................... 27

APPENDICES: Appendix A - Procedure by Second or Subsequent Convictions ........................................A - 1 Appendix B – Saskatchewan Corrections and Public Safety Youth Extrajudicial Sanctions Policy (2004) ........................................................................................................B - 1 Appendix C - Saskatchewan Justice Alternative Measures Policy (2004) .........................C - 1

Saskatchewan: Bar Admission Program 1 Criminal Procedure – Sentencing


The sentencing provisions of the Criminal Code were changed significantly in 1996 when Parliament replaced part XXXIII of the Code (entitled "Punishment") with an entire new part XXXIII (entitled "Sentencing"). Although, many of the previous sections remained with new section numbers, there were significant changes and additions to the previous provisions especially respecting fines, alternative measures and conditional sentences of imprisonment. More recently, a number of changes have been made to the Code provisions respecting usage of firearms. Unless otherwise stated, the section numbers listed in this paper refer to the Criminal Code. Portions of this paper are based on an earlier paper on sentencing by Alma Wiebe of Saskatoon. We are also grateful to Judge Carol Snell and Laura Bourassa, both of Regina, for their assistance, in preparing this paper. I. TYPES OF SENTENCE

A. ABSOLUTE DISCHARGE Section 730(1) - A discharge is limited to offences where no minimum punishment is prescribed and where the maximum punishment is less than 14 years imprisonment. The offender can be discharged absolutely or conditionally on the terms contained in a probation order. Section 730(3) - The accused is deemed not to were convicted except for the purposes of appeal and for a plea of autrefois convict (i.e., a plea that one has been formally convicted of the same offence). However, an absolute discharge will be taken into account to determine whether a subsequent discharge ought to be granted. R. v. Tan (1974) 22 C.C.C. (2d) 184 (B.C.C.A.). Section 730(4) - While on probation following a conditional discharge, the court may then revoke the discharge, convict the accused and impose sentence. A fine cannot be imposed in addition to a conditional or absolute discharge. R. v. Leonard (1973), 11 C.C.C. (2d) 527 (Ont. C.A.). The granting of an absolute or conditional discharge is predicated on a determination by the court that it is in the best interest of the accused and not contrary to the public interest to grant the discharge. Factors considered in making this determination include:

2 Saskatchewan: Bar Admission Program Criminal Procedure - Sentencing

Revised 2002 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.

(a) the triviality or otherwise of the offence; (b) whether the accused is a person of good character (usually someone without previous

conviction and for who a conviction is not needed to deter him from future offences and to rehabilitate him);

(c) the effect of conviction on the future of the accused's career, employment,

deportation; (d) personal circumstances of the accused at the time the offence was committed; and (e) the need for general deterrence.

Section 255(5) - an offender charged with either impaired driving or .08 may be granted a conditional discharge if the court, after hearing medical or other evidence, considers that the person is in need of curative treatment in relation to his or her consumption of alcohol or drugs and is further satisfied that it would not be contrary to the public interest. The probation order attached to the conditional discharge will include a condition respecting the persons attendance for curative treatment in relation to the consumption of alcohol or drugs. Factors to be considered include:

(a) the circumstances of the offence; (b) the motivation of the offender as an indication of probable benefit from treatment; (c) the availability and calibre of the proposed facilities for treatment and the ability of the

accused to complete the programme;

(d) the probability that the treatment will be successful and that the offender will not re-offend; and

(e) the criminal record and, in particular, the alcohol-related driving record of the offender (the

repeat offender may well be a more suitable candidate because of his or her chronic alcoholism and because prior sentences involving fines or imprisonment have had no deterrent effect);

If considered appropriate, it should be accompanied by a lengthy period of probation with stringent terms. B. SUSPENDED SENTENCE AND PROBATION Section 731 (1)(a) - A suspended sentence is limited to offences where no minimum penalty is prescribed. The accused is convicted but the passing of sentence is suspended and the court directs the offender be released upon the conditions in a probation order.



Section 732.2 (1) - A probation order comes into force when made or, if combined with a period of incarceration, either upon release or, if the offender is given a conditional release, upon conclusion of the term. If the offender receives a conditional sentence, a probation order made in addition to that sentence comes into effect upon expiry of the conditional sentence. Section 732.2 (2)(b) - An offender may be placed on probation for a term not exceeding three years. Section 732.1 (2) - Deemed conditions of a probation order include keeping the peace and being of good behaviour, appearing before the court if and when required to do so and notifying the court or probation officer, in advance, of any change in name or address and promptly of any change of employment or occupation. Further potential conditions set out in section 732.1(3) are:

(a) report to and be under the supervision of a probation officer; (b) provide for the support of his or her spouse or any other dependant; (c) remain within the jurisdiction of the court; (d) abstain from the consumption of alcohol; (e) abstain from owning, possessing or carrying a weapon; (f) perform up to 240 hours of community service work over a period not exceeding

18 months;

(g) if the offender agrees and if accepted into the program, participate actively in a treatment program approved by the province; and

(h) comply with other reasonable conditions as directed by the court (usually this involves no

contact with victim(s), a curfew, residing at a specified residence, submitting to a breath test on demand, presenting oneself for a curfew check).

Another optional condition is intensive probation (electronic monitoring) by which the offender is confined to their home for a given period of time. Their movement is monitored electronically by use of a bracelet and a monitoring device attached to their telephone (see R v. McLeod (1993), 81 C.C.C. (3d) 83 (S.C.A.). Section 732.1 (5) - The court must give a copy of the probation order to the accused and explain the court's power to change optional probation conditions (under s. 732.2 (3)), the potential of revocation and re-sentencing if the offender commits another offence while on probation (as per



s. 732.2(5)) and the potential of being charged with breach of probation if any of the terms of the order are contravened (as per s. 733.1). The court must take reasonable steps to ensure that the offender understands the order and the explanations outlined above. Section 731 - Where the court imposes a fine or imprisonment (for a term not exceeding two years) it may impose probation but the court has no jurisdiction to impose a fine plus imprisonment plus a period of probation. See R. v. Blacquiere (1975), 24 C.C.C. (2d) 168 (Ont.C.A.). Section 731(1) - In determining whether to impose probation, the court must consider:

(a) the nature of the offence; (b) the age and character of the accused; and (c) the circumstances surrounding the offence.

The object of probation is to provide the opportunity for the offender to rehabilitate without imprisonment through supervised control. This is commonly referred to as a "community based" disposition. The new provisions regarding Conditional Sentences of Imprisonment (discussed below) provide another form of community based sentence. Section 732.2(3) - A probation order may be varied at any time during its term by the court that made the order after hearing both the prosecutor and accused.

C. FINES Section 787(1) - A fine imposed respecting a summary conviction offence may not exceed $2,000 unless otherwise provided in the Code. There is no maximum fine for indictable offences. Section 734(1) - Except for an offence punishable by a minimum term of imprisonment, an accused may be fined in addition to or in lieu of other punishment. Section 734(2) - A court may fine an offender only when satisfied the fine can be paid or discharged through a fine option program.



Section 734.1 - A court that fines an offender shall clearly set out the amount and manner of payment and the time for payment together with other terms respecting payments deemed appropriate. Section 734.2 - A court upon imposing a fine shall cause to be given to the offender:

(a) copy of the order; (b) an explanation of the substance of sections 734 to 734.8 and 736; (c) an explanation of the available fine option programs and the procedure for application to

them; and (d) an explanation of the procedure for a change in the terms of a fine order under

section 734.3 The court must ensure that the offender understands the order and all explanations provided (as above). Section 734.3 - On application by the offender, the court may amend any term of the fine order except the amount. 1. Default Time Section 734 (5)(a) - Default time is calculated as the lesser of the fine plus costs of committal divided by eight times the provincial minimum wage and of the maximum term of imprisonment provided for that offence. (In Saskatchewan it is roughly one day per $50.) Section 734.8 - Partial payment of a fine reduces the term of imprisonment imposed in default proportionately. Section 734.5 - Upon default, the province may withhold issuance of a licence, a permit or other instrument the offender would otherwise be entitled to until the fine is paid. Section 734.6 - Upon default, the Crown can file the fine order in a court of competent jurisdiction as a judgement and pursue civil enforcement.



Section 734.7(1) - A court cannot issue a default warrant for the offender until satisfied that civil enforcement or the withholding of licences or permits is not appropriate under the circumstances and that the offender has, without reasonable excuse, refused to pay the fine. Section 734.7(2) - Where no time has been allowed for payment of a fine and the offender has been committed to prison for default, the court shall state in the warrant the reason for immediate committal. Section 734.7(4) - The imprisonment of an offender in default of payment terminates the operation of sections 734.5 and 734.6 (civil enforcement and withholding of licences and permits) regarding that fine.

2. Victim Fine Surcharge Section 737(1) and (2) - The court who convicts or discharges an offender for any offence under the Criminal Code, the Controlled Drugs and Substances Act shall impose a victim fine surcharge in an amount not exceeding 15% of any fine imposed or, for any non-fine disposition, $50 in the case of a summary offence and $100 in the case of an indictable offence. Section 737(5) and (6) - Where the offender or his or her dependants would suffer undue hardship from a surcharge, the court can waive it. However, the court must provide reasons for waiving the surcharge (on the court record or, where the proceeding is not being recorded, in writing).

3. Fine Option Program Section 736(1) - An offender may discharge a fine in whole or in part by earning credits for work performed in a provincial fine option program (either in the province in which the fine was imposed or in another province if an agreement exists between that province and the province where the fine was imposed). The offender must qualify for such a program. Section 737(10) - A fine option program cannot be accessed by an offender to work off a victim fine surcharge.



D. IMPRISONMENT Section 743 - An offender convicted of an indictable offence for which no punishment is specifically provided is liable to imprisonment for five years. Section 743.1 - A sentence or the aggregate of consecutive sentences totalling two years imprisonment or more, shall be served in a penitentiary. Section 731(1)(b) - Probation may follow a term of imprisonment not exceeding two years. Section 732(1) - For a jail term not exceeding 90 days, a court may allow the offender to serve the sentence intermittently. The offender is placed on probation until the term is completed. The court, in considering such an order, has regard to the age and character of the offender, the nature and circumstances of the offence and the availability of appropriate accommodation to ensure compliance with the sentence. This provision allows an offender to maintain employment, care for children, continue school, etc. Section 732(2) - An offender sentenced to intermittent time may apply, upon giving notice to the Crown, to convert the remaining days to straight time (i.e. to be served consecutively rather than on weekends). Section 732(3) – If a person reoffends while subject to an intermittent sentence, the balance of the sentence is served on consecutive days unless the Court otherwise orders. Section 718.3(1) and (2) - The length of incarceration is in the discretion of the court subject to any maximum period defined in the Code, except where a minimum term is prescribed. Section 727 - An accused convicted of an offence for which a greater punishment may be imposed by reason of a previous conviction (such as the impaired driving provisions of the Code) shall not be subject to the greater punishment unless the Crown gives notice to the offender of its intention to seek such higher punishment. This notice may be verbal and can be given any time including the morning of commencement of the accused’s trial. Notice must be given to the accused or his



lawyer. This notice merely fixes a bottom limit on the sentence for an offence such as impaired driving which has a different minimum punishment. Failure to give such a notice does not require the offender be treated as a first offender. R. v. Norris (1988) 41 C.C.C. (3d) 441 (N.W.T.C.A.). Respecting the offences of impaired driving and .08, the policy directive of Saskatchewan Justice regarding second or subsequent convictions is attached as Appendix A. Sections 752-754 - The dangerous offenders provisions in the Code are set out in sections 752 to 754. Section 753 defines the meaning of a “dangerous offender”. Section 753.1 now defines an additional classification called a “long term-offender”. A person found to be a dangerous offender receives an indeterminate sentence. A person found to be a long-term offender receives a sentence of at least two years penitentiary time to be followed by up to ten years supervision in the community (breach of this supervision order is an indictable offence punishable by up to ten years imprisonment). Section 752.1 allows the court, after conviction and if satisfied that the offender might be found to be a dangerous offender or a long-term offender, to remand that offender for up to 60 days so that an assessment be prepared “by experts” (there is no longer a requirement that a report be received from a defence and Crown psychiatrist). Upon receipt of this assessment and after hearing other evidence, the court may find the offender to be a dangerous offender or, in the alternative, a long-term offender. If neither finding is made, the offender is to be sentenced under the relevant offence section of the Code. The application for “dangerous offender” status is to be made before sentence is imposed unless the narrow criteria in s. 753(2) apply (which then allows this application to be brought within six months of sentence). Section 743.6 - An offender sentenced to incarceration of two years or more respecting an offence listed in Schedule 1 and 2 of the Corrections and Conditional Release Act (essentially a list of serious offences, Schedule 1 and 2 can be found on the Government of Canada website at: http://laws.justice.gc.ca/en/C-44.6/39625.html#rid-39764) may be denied full parole prior to one half of his or her sentence or 10 years, which ever is less. The judge must be satisfied, having regard to the circumstances of the offence and the character and circumstances of the offender, that public denunciation of the offences or the objective of specific or general deterrence so requires such an order.



Section 718.3(4) - Where a term of imprisonment is imposed while an offender is under a sentence for another offence, where a term of imprisonment and fine with default time are imposed or where a person is convicted of more than one offence before the same court at the same sitting and:

(a) more than one fine with default time are imposed; (b) imprisonment is imposed; or (c) both fine, with default time and imprisonment are imposed;

the court may order consecutive sentences for each offence. A sentence imposed without direction as to whether it consecutive or concurrent shall be taken to be concurrent. In re Hicks (1948), 92 C.C.C. 154 (B.C.S.C). The general practice is to impose consecutive sentences for separate offences unless a "relationship" exists between them (i.e. subject matter, time or pattern). See R. v. Haines (1975), 29 C.R.N.S. 230 (Ont.C.A) and R. v. Saumer [1977} 3 W.W.R. 385 (B.C.C.A.). The "totality principle" is important in dealing with the question of consecutive and concurrent sentences (i.e., a total sentence ought not to be disproportionate to the nature of the offences). Clayton Ruby in Sentencing (Third Edition) at page 39 deals with the rationale of the "totality principle":

The purpose is to insure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate just and appropriate. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects. The first limb of the principle can be seen as an extension of the central idea of proportionality between offence and sentence, while the second represents an extension of the practice of mitigation.

Section 719(3) - A court, in determining a sentence, may take into account time spent on remand. In R. v. Wust (2000), 143 C.C.C. (3d) 129, the Supreme Count of Canada, while noting that a two month credit for one month on remand is entirely appropriate in reflecting the harshness of pretrial custody, said a different “rationale” could be applied depending on the circumstances of detention, and in any event this credit should be left in the discretion of the sentencing judge. The Supreme Court in Wust also held that a sentencing judge may deduct time spent on remand even when the resulting sentence is less than the minimum period set out in the relevant statute. Section 85 - Use of a firearm in committing or attempting to commit an indictable offence or during flight thereafter is dealt with by way of a consecutive sentence to the sentence imposed for the principle offence. A first offence under this section is punished by a minimum jail term of one year while a second subsequent offence is punished by a minimum jail term of three years. This section does not apply to the use of a firearm in committing an offence under section 220 (criminal



negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (causing bodily harm with intent - firearm), 272 (sexual assault with a weapon), 273 (aggravated sexual assault), 279 (kidnapping), 279.1 (hostage taking), 344 (robbery) or 346 (extortion). Use of a firearm in committing any of these offences results in a minimum jail term of four years.

E. CONDITIONAL SENTENCE OF IMPRISONMENT Section 742.1 - An offender convicted of an offence (other than an offence punishable by a minimum term of imprisonment) and receiving a sentence of imprisonment of less than two years may be allowed to serve this sentence in the community subject to the terms of a conditional sentence order. The court must be satisfied that a community-based sentence would not endanger the community's safety and that such a sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718-718.2 Section 742.3(1) - All conditional sentence orders contain terms requiring the offender to:

(a) keep the peace and be of good behaviour; (b) appear before the court when required; (c) report of a supervisor within two working days of the order being made and thereafter as

required; (d) remain within the jurisdiction of the court unless written permission is obtained from the

supervisor or the court; and (e) notify the court or the supervisor in advance of any change in address or name and promptly

upon any change in employment or occupation. Optional conditions include directions that the offender:

(a) abstain from consuming or possessing alcohol or non-prescription drugs; (b) abstain from owning, possessing or carrying a weapon; (c) provide for the support or care of dependants; (d) perform up to 240 community service hours; (e) attend a treatment program approved by the province; and (f) comply with other reasonable conditions imposed by the court.



Section 742.3(3) - A court making a conditional sentence order shall:

(a) give a copy of the order to the offender together with an explanation of sections 742.4 and 742.6 (see below); and

(b) take reasonable measures to ensure the offender understands the order and the explanations

given.

Section 742.4 - An offender's supervisor may give notification requesting a change in any optional condition. The prosecutor or offender may, within seven days of such notification, request a hearing. The court may, within this time, direct such a hearing be held. If no hearing is requested or ordered, the change takes effect fourteen days after notification. A hearing requested or ordered shall be held within thirty days of notification. Section 742.6 - Upon allegation of breach of a conditional sentence term, the offender may be arrested or summoned to court. An allegation of breach must be supported by the supervisor's written report, including (where appropriate) signed statements of witnesses. A copy of this report must be supplied to the offender. The court, where satisfied on the balance of probabilities that the offender has without reasonable excuse (the proof of which lies on the offender) breached a condition of the order, may:

(a) take no action; (b) change the optional conditions (c) suspend the conditional sentence order and direct

(i) that the offender serve in custody a portion of the unexpired sentence; and (ii) that the conditional sentence order resume on the offender's release from custody,

either with or without changes to the optional conditions; or

(d) terminate the order and direct that the offender be committed to custody until expiration of the sentence.

Section 742.6(10) - A conditional sentence is suspended upon issuance of an arrest warrant, upon the arrest of the offender for the alleged breach or upon the offender being summons to appear in court.



Section 742.6(3) - A hearing shall be commenced “within 30 days, or so soon thereafter as is practicable, after” the offender’s arrest or after the offender is summoned to Court. Section 742.6(11) - During the time a sentence is suspended, the conditions of the offenders sentence still apply and can be enforced. Therefore, an allegation of breach can be made during the period a conditional sentence is suspended. Section 742.6(13) - Although remission is calculated on the portion of a conditional sentence served in custody, remission is not calculated on any time an offender spends on remand awaiting a breach hearing. Section 742.6(14) - If there is an unreasonable delay in the execution of a warrant for arrest, the court may order that any time between the issuance and execution of the warrant be deemed time served under the conditional sentence. Section 742.6(15) - If an allegation is withdrawn, stayed or dismissed by the Crown, an offender will receive credit for all of the time his or her sentence was suspended and 1 ½ times the number of days he or she spent on remand. As a result, the offender will receive remission for any time spent on remand pursuant to a breach of allegation which is then withdrawn, stayed or dismissed by the Crown. Section 742.6(16) - If a court is satisfied that an offender has breached a condition of the conditional sentence order, the court may, in exceptional cases and in the interests of justice, order that some or all of the period of suspension of the conditional order be deemed to be time served under that conditional sentence. Section 742.7(2) - When a court orders that all or part of the remainder of a conditional sentence be served in custody, that period of custody shall be served consecutively to any other custodial sentence being served, unless the court orders otherwise.



Section 742.7 - When an offender at large under a conditional sentence is imprisoned for another offence, whenever committed, the running of the conditional sentence is suspended during that imprisonment unless otherwise ordered by the court. The Supreme Court of Canada’s decision in R. v. Proulx, [2000] S.C.J. No. 6, [2000] 1 S.C.R. 61, (2000) 250 N.R. 201, [2000] 4 W.W.R. 21, (2000) 142 Man.R. (2d) 161, (2000) 140 C.C.C. (3d) 449, (2000) 30 C.R. (5th) 1, (2000) 49 M.V.R. (3d) 163 is the most cited decision regarding when a conditional sentence should be imposed. Proulx plead guilty to dangerous driving causing death and dangerous driving causing bodily harm. The Supreme Court restored his trial court sentence of eighteen months incarceration (jail). The court in Proulx clearly distinguished a conditional sentence from a probation order, directing that conditional sentences normally include punitive conditions (such as house arrest). The court, in refusing to eliminate any offences (except those with minimum term of imprisonment) from consideration of a conditional sentence, emphasized that a conditional sentence need not be the same length as the period of jail that would otherwise have been imposed. The result of this appears to be that, if granted, a conditional sentence is likely to be longer than the jail term that otherwise would have followed. In R. v. Knoblauch [2000] 149 C.C.C. (3a) 1 (S.C.C.) the Supreme Court held that it was permissible for a trial judge to impose a conditional sentence requiring an offender to reside in a secure psychiatric facility. The following cases, from the Saskatchewan Court of Appeal will be of particular interest to defence counsel in advocating for a conditional sentence: • In R. v. D.J.J. [1998] S.J. No.881, the court imposed a conditional sentence of one year on

an offender convicted of sexually touching and sexually assaulting two children. D.J.J. was a person with diminished intellectual capacity and no previous criminal record. At trial, the offender was sentenced to two years imprisonment. Jackson JA, while noting that her court had not previously imposed a conditional sentence to an offender convicted of sexual assault, found that such a sentence would be appropriate for this offender considering the opinion of mental health professional that D.J.J. was at a low risk to re-offend sexually, and that



incarceration may actually have increased the risk of re-offending for him. Vancise JA concurred in the majority decision, while Cameron JA dissented, and stated that he would he could find no reason to interfere with the trial judge’s sentence, given the nature of the offence and the standard of appellate review set out by the Supreme Court in M. (C.A.).

• Two cases which deal with the applicability of conditional sentences to drug offences are R.

v. Laliberte [2000] S.J. No. 138 and R. v. Keepness [2000] S.J. No. 136. In Laliberte,Vancise JA upheld the lower courts sentence of a year conditional sentence order followed by a probation order of two y ears. Vancise JA was clear to distinguish between commercial traffickers (who he said should be incarcerated for a significant period of time) and bit players (or “small fry”), such as Laliberte, who, in most cases, “traffic to feed their own habit or addiction.” While stopping short of setting down any firm rule about the appropriateness of a conditional sentence for a bit player, considerations of these decisions is essential before speaking to sentence for such an offender.

• Vancise JA’s dissent in R. v. Berntson [2000] S.J. No. 237 reviews the case law respecting

conditional sentences in some detail, including Proulx and Laliberte.• In R. v. Elliot [2001] S.J. No. 89, the Court of Appeal upheld a conditional sentence imposed for

a conviction for the offence of impaired driving causing death. Vancise JA reviewed the law relating to appellate review of a sentence.

• In R. v. Moulton [2001] S.J. No. 702, the Court of Appeal, in upholding a conditional sentence

imposed on an offender convicted of fraud involved $273,000, held that there is not a de facto monetary limit beyond which a conditional sentence will be found to be demonstrably unfit or unreasonable.

An evolving question regarding conditional sentences is whether a formalized process of risk analysis will adopted by judges for the purpose of assessing the question of public endangerment. Most reported cases have focused on whether a conditional sentence would be inconsistent with the purpose and principles of sentencing. The public risk posed by an offender, although commented on briefly in most judgements, has not formed a major focus of the analysis. Vancise J.A. is his dissenting judgement in R. v. McDonald (1997) 113 C.C.C. (3d) 418 (Sask.C.A.) at 441 did provide a list of factors he believed were relevant to determining whether an offender would endanger the community if serving a conditional sentence. These were:

(a) whether the accused's conduct caused or threatened serious harm to another person or to his property;

(b) whether the act was planned or the resultant harm was planned; (c) the conduct of the offender during the commission of the offence;



(d) whether the victim's conduct facilitated the commission of the offence; (e) the likelihood of re-offending; (f) the possibility of the offender responding positively to probationary treatment; (g) the record of the offender; (h) whether the offender accepts responsibility and show remorse for the offence. (i) the conduct of the offender since the offence; and (j) the effect of the offence on the victim.

The pre-sentence report will likely continue to be a major source of information to assist courts in making this decision. The risk assessment used by Probation Services in assessing risk is entitled the Offender Risk Assessment and Management System (ORAMS), which was originally developed by Manitoba Corrections.

F. RESTITUTION AND COMPENSATION Section 738(1) - An offender may, in addition to any other measure imposed, be ordered to make restitution:

(a) in the case of damaged or lost property of any person resulting from the offence, directly to that person;

(b) in the case of bodily harm to any person as a result of the offence, payable to that person in

an amount not exceeding all pecuniary damages; and

(c) in the case of bodily harm or the threat of bodily harm to the offender's spouse or child, compensation in an amount not exceeding actual and reasonable expenses incurred for moving out of the offender's household for temporary housing, food, child care and transportation, where the amount is readily ascertainable.

Section 741(1) - If the restitution order is not paid forthwith, the person entitled to payment may file the order as a judgement in the Court of Queen's Bench to be enforced as a civil judgement. Although the restitution and compensation order under section 738 is separate and district from a condition ordering restitution in a probation order or conditional sentence order, default of a restitution obligation under a probation or conditional sentence order nevertheless still allows the victim to enforce this debt by registering a restitution order in the unpaid amount with the Court of Queen’s Bench.



Section 741(2) - Any monies found on the offender at the time of arrest may be applied towards any restitution ordered. Section 741.1 - All persons entitled to restitution, shall receive a copy of the restitution order. Section 741.2 - A restitution order shall not effect any other civil remedy available respecting the offender's act or omission.

G. PROHIBITION ORDERS

1. Driving Prohibition An offender convicted of impaired driving, .08 or refusing to take a breath test will receive a mandatory driving prohibition under section 259(1). This prohibition is a minimum of one year for a first offence, two years for a second offence and three years for a subsequent offence. All such prohibitions run in addition to any jail time served. The province's Highway Traffic Board will also disqualify an offender from driving as a result of the Criminal Code prohibition. Usually, the provincial suspension will be longer. As well, keep in mind that anyone charged with impaired driving or .08 will automatically be suspended for 24 hours at the time of arrest (under the Highway Traffic Act), and then will be given a seven day temporary driving permit, which is followed by an automatic ninety day driving suspension (under the Highway Traffic Act). Section 259(1.1) – (1.4) - In making this prohibition, the court may authorize the offender to operate a motor vehicle equipped with an alcohol interlock ignition devise during the prohibition period, if the offender registers (which means is accepted into) an alcohol ignition interlock devise program established by the province in which the offender lives. The court sets a period after which the authorization takes effect, which is a minimum of three months for a first offence, six months for a second offence, and 12 months for a subsequent offence. But note in Saskatchewan, the ignition interlock program is only available to first offenders (as defined by s. 72 of the Vehicles



Administration Act). The authorization applies to another province, if the offender moves there and is accepted into the province’s ignition interlock program. This authorization has no effect unless the offender is registered in an ignition interlock program. Section 259(2) - In the case of several offences (most notably causing death by criminal negligence, causing bodily harm by criminal negligence, manslaughter, dangerous driving, failing to stop at the scene of an accident and failing to stop for a police officer in pursuit), the court may impose a driving prohibition for any period (where the maximum penalty of the offence is life), for a period not exceeding ten years (where the offender is liable to imprisonment for more than five years but less than life) or for a maximum of three years in any other case.

2. Firearm Prohibition

Effective December 1, 1998, the previous provisions of the Code dealing with firearms prohibitions (in s. 100) were amended as a part of the omnibus bill which created the federal firearms registry and also brought into existence the Firearms Act. The following summary deals only with the new firearm prohibition sections in the Code. Parts of this discussion were taken from a paper done by Laura Bourassa of Saskatchewan Justice. Section 109 (Mandatory Orders) - Where an accused is convicted of:

(a) an indictable offence punishable by at least 10 years imprisonment in which violence against a person is used, threatened or attempted, or

(b) an offence under s. 85 (1) (using firearm in commission of offence) or s. 85 (2)

(using imitation firearm in commission of offence), s. 95(1) possession of prohibited or restricted firearm with ammunition), s. 99(1) (weapons trafficking), s. 100(1) (possession for the purposes of weapons trafficking), s. 102(1) (making automatic firearm), s. 103(1) (importing or exporting knowing it is unauthorized) or s. 264 (criminal harassment), or

(c) any offence that involves or the subject matter of which is a firearm, cross-bow,

prohibited weapon, restricted weapon, prohibited device, any ammunition or any prohibited ammunition or explosive substance where the person was subject to a prohibition order for possessing such things



there is a minimum ten year prohibition from possession of any non-restricted firearm, cross-bow, restricted weapon, ammunition and explosive substance. Further, there is a minimum life prohibition against possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition. For a second conviction, the prohibition order is for life. This would involve notice to the accused of intention to seek the greater penalty and proof of the previous conviction. The previous Code prohibition prohibitted an offender from possessing “any firearm, ammunition or explosive substance” The new provisions prohibit possession of “any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited devise, ammunition, prohibited ammunition and explosive substance”. Section 110 (Discretionary Orders) - This section permits the court to prohibit possession for up to 10 years of all or any firearm or restricted or prohibited items. Note that the court can pick only some of the items to prohibit possession of. This discretionary order applies when:

(a) the offence is a summary conviction one involving actual, threatened or attempted violence, or

(b) an indictable offence carrying less than a 10 year maximum where violence (actual,

threatened or attempted) was involved, or

(c) an offence involving a firearm by a person who was not then subject to a prohibition order. The court must give reasons for not making the discretionary order or for making only a partial order covering some of the items but not all of them. Section 113 (Lifting of Prohibition Orders) - Section 113 permits the court to partially lift a prohibition order made under s. 109 (mandatory order), s. 110 (discretionary order), s. 111(5) and 117.05(4) (preventive prohibition order), s. 515(2) (bail condition), s. 732.1(3)(d) (probation order) and s. 810(3) (peace bond). This exemption may only be for the purposes of (and hence is limited to usage for) sustenance hunting or employment. In considering whether to grant this exemption the court will consider the criminal record of the offender, the nature and circumstances of the offence for which the prohibition was or is to be made and the safety of the offender and other persons. Under this section, the court may order the Chief Firearms Officer to issue to the offender,



on whatever conditions the court believes are necessary, an authorization, licence or registration certificate for sustenance or employment purposes. Unlike the previous Code provisions, an application under this section can be brought at the time of sentencing or during the prohibition period. Note: Section 89 of the Firearms Act requires the court to inform the Chief Firearms Officer when it has made a prohibition order or when it varies or revokes a prohibition order.

Section 117.011 - This section provides a tool to ensure enforcement of prohibition orders. Where a person lives with or associates with someone who is subject to the order their use and possession of regulated weapons, etc., can be curtailed. The least intrusive order is to be made. Orders could include special storage provisions or outright prohibitions on possession.

3. Non-attendance Order Section 161 - When an offender is convicted or given a conditional discharge under sections 151, 152, 155, 159, 160(2) or (3), 170, 171, 271, 272, 273 or 281 in respect of a person who is under the age of 14 years, the court may make an order prohibiting the offender from attending a public park or public swimming area where persons under the age of 14 can reasonably be expected to be present or a day care centre, school ground, play ground or community centre or from seeking, obtaining or continuing any employment or volunteer work in a capacity that involves being in a position of trust or authority towards a person under the age of 14 years. H. PARDONS

The Criminal Records Act governs the granting of pardons for both convictions and discharges granted under section 736. Section 4(3) Criminal Records Act - The National Parole Board will consider applications for pardon after the expiry of:



(a) in the case of a summary conviction proceeding, two years after the termination of imprisonment, probation or the payment of a fine (whichever is later) or in the case of a discharge under section 730, one year after the date of the absolute discharge or the date upon which the probation and the conditional discharge terminated;

(b) in the case of an indictable offence, five years after the date of the two year period

referred to above for a summary conviction, or, in the case of a discharge granted under section 730 for an indictable offence, three years after the date of the one year period for a discharge of a summary conviction offence.

Section 5 Criminal Records Act - The effect of a pardon is to vacate the conviction or discharge. Section 6(2) and (3) Criminal Records Act - All records of convictions for which pardons have been granted must be kept separate from criminal records and cannot be released without prior approval of the Solicitor General of Canada.

I. ALTERNATIVE MEASURES Although not involving the formal sentencing process, the Criminal Code now contains provisions (sections. 717 to 717.4) allowing an accused person to be dealt with through Alternative Measures rather than through the formal court system. These provisions are similar to those set out in sections 4 to 11 of the Youth Criminal Justice Act. The Government of Saskatchewan, through ministerial orders dated July 26, 2004, has authorized youth and adult alternative measure programs which are consistent with specified program criteria. This program criteria is attached as Appendix B and Appendix C. It empowers the Deputy Minister of Justice to amend the program criteria and to approve alternative measure programs located in communities across the province. The program criteria refer to two processes: diversion (allowing an offender to be dealt with outside of court) and mediation (a form of diversion which also involves the victim). Section 717(1) - Alternative measures may be used to deal with an accused only if not inconsistent with the protection of society and:

(a) the alternative measures program is approved by the provincial government;



(b) the person in charge of the decision to implement alternative measures if satisfied that they would be appropriate having regards to the needs of the accused and the interests of society and the victim;

(c) the accused consents to alternative measures, and before consenting, is advised of

his or her right to consult counsel;

(d) the accused accepts responsibility for the act or omission that forms the basis of the offence;

(e) the Crown believes there is sufficient evidence to proceed with prosecution of the

offence; and

(f) the prosecution would not be barred by law. Section 717(2) - Alternative measures shall not be used to deal with an accused who:

(a) denies responsibility for the offence; or (b) wishes to deal with the charge in open court.

Section 717(4) - The use of alternative measures does not bar the Crown from proceeding against an accused in open court respecting the same charge but:

(a) if the court is satisfied on a balance of probabilities that the accused has totally complied with the terms and conditions of alternative measures, the court shall dismiss the charge; and

(b) if the court is satisfied on a balance of probabilities that the accused has partially

complied with the terms and conditions of alternative measures, the court may dismiss the charge if, in the opinion of the court, prosecution of the charge would be unfair having regard to the circumstances and the accused's performance regarding during the alternative measures.

J. DNA ORDERS Section 487. 051 - Upon sentencing, the court shall make an order requiring the taking of a DNA sample from an offender convicted of a “primary designated offence” and may make such an order in the case of a “secondary designated offence”. Primary and secondary designated offences are defined in section 487.04. A DNA order need not be made, in the case of a “primary designated offence”, if the offender establishes that the impact of such an order, on the offender’s privacy and



security of the person, would be grossly disproportionate to the public interest in protection of society and the proper administration of justice to be achieved through early detection, arrest and conviction of offenders. In the case of a “secondary designated offence”, the court, in deciding whether to make such an order, shall consider the offender’s criminal record, the nature and circumstances of the offence committed, and the effect such an order would have on the offender’s privacy and security of the person.

II. SENTENCING PRINCIPLES The sentencing court has broad latitude in determining the appropriate sentence to be imposed. Prior to the 1996 changes to the Code, some general sentencing principles had developed through appellate authority. These guide trial courts during sentencing deliberations. Culliton C.J.S. in R. v. Morrisette (1970) 1 C.C.C. (2d) 307 (S.C.A) set out the following principles:

(a) punishment; (b) deterrence (both general and individual); (c) protection of the public; and (d) reformation and rehabilitation of the offender.

The Code now sets out the purpose and principles of sentencing in the following fashion: Section 718 - The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society , where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparation for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to

victims and to the community.



Section 718.1 - A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 - A court shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or offender and:

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin. language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or child,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances, or

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization

(b) a sentence should be similar to sentences imposed on similar offenders for similar

offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be

appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders.

A review of sentences handed down for the offence in question is helpful to defence and Crown counsel. Always identify the principle or principles of sentencing likely to be focused on by the court. For example, offences involving sexual or spousal assault or trafficking narcotics under the Controlled Drugs and Substances Act are offences which the Saskatchewan Court of Appeal have placed great emphasis on general deterrence as the predominant sentencing principle. Defence and Crown counsel are well advised to be aware of the range of sentence recognized by the Court of Appeal respecting the offence before the court.



In addition to the principles of sentencing discussed above, Clayton Ruby, in Sentencing (Third Edition), at chapter six, sets out a long list of factors which may affect the type and severity of sentence. Although not being an exhaustive list, some of the significant factors set out by Ruby are:

(a) the method of the crime (was there planning and deliberation and/or was there a continuation of the crime over a period.).

(b) the magnitude and impact of the crime. (c) the motive for the crime. (d) the conduct, character, lifestyle and vulnerability of the victim. (e) whether a breach of trust was involved (i.e., was the offender in a position of trust

over the victim). (f) the background and attitude of the offender. (g) previous involvement by the offender in the judicial system (i.e., previous record). (h) whether violence and/or a weapon was used. (i) the age, employment situation and family background of the offender. (j) time spent in custody (i.e., on remand). (k) the impact of the sentence upon the offender. (l) whether the offender suffers from a dependency on alcohol and drugs. (m) whether an early guilty plea was entered.

III. PROCEDURE AND EVIDENCE

A. USUAL PROCEDURE AT SENTENCING The following procedure has been developed in the Provincial Court of Saskatchewan (see sections 720-729 of the Code for a codification of the procedure followed and the evidential rules at sentencing):

(a) the charge is read to the accused; (b) the accused elects mode of trial or enters a plea;



(c) if a guilty plea is entered, the prosecutor reads a summary of the offence circumstances or calls evidence to establish the factual basis the offence. Section 724(3) of the Code sets out the procedure and standard to be applied with respect to a dispute over any fact relevant to the determination of sentence. This is essentially a codification of the procedure and evidential considerations established in R. v. Gardiner (1983) 30 C.R. (3d) 289 (S.C.C.);

(d) the Crown then produces any prior record for the offender. This record can be submitted to

the court if acknowledged by the offender or, if not, must be proved formally by the Crown.

(e) the offender may cross-examine any witnesses called or may challenge the prosecutor's summary of the facts in any particular. In the latter case, the prosecutor must prove the facts alleged in the ordinary way. Section 724(1) of the Code provides that the court "in determining sentence, ... may accept as proved any information disclosed at trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender."

(f) if the facts do not support a guilty plea, the Court will refuse to accept the guilty plea;

(g) the offender may call evidence and/or make submissions to the Court respecting sentence;

(h) Section 722.2 of the Code now requires a judge to make enquiries, before passing sentence,

on whether the victim has been given an opportunity of submitting a victim impact statement. Sentencing may be adjourned to allow preparation of this statement or to obtain other information about the harm done to and the loss suffered by a victim.

(i) the prosecutor and the offender or his counsel may make submissions regarding an

appropriate sentence. Section 726.1 provides "[i]n determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions by or on behalf of the prosecutor or the offender."

(j) the court must ask whether the offender has anything to say (s.726).

(k) the court imposes sentence and must (by virtue of s. 726.2) state the terms of the sentence

and the reason for it on the record.

B. ROLE OF COUNSEL Although the final sentencing decision rests with the judge, counsel is in a position to persuade the court on what constitutes an appropriate sentence in all the circumstances. Often defence counsel will approach the crown with a view towards a joint sentencing submission. Although the judge is not a party to such an agreement and is not bound to impose the recommended sentence, joint submissions of counsel are usually followed. (They are not to be rejected unless it is contrary to the public interest and would bring the administration of justice into dispute: R. v. Webster, [2001] S.J. No. 371 (Sask. C.A.).)



Both Crown and defence counsel should know the permissible sentences for the offence in question and be in a position to assist the judge in ensuring the legality of the sentence, thus avoiding an appeal to correct error. Both counsel may suggest an appropriate sentence, being careful not to lose credibility by submitting what is clearly an unfit sentence. Defence counsel may find it useful to develop a standard form for client information which is completed on the first interview with the client and kept up to date as time passes. If the time comes for sentencing, the lawyer will have ready at hand all necessary antecedents of the client in a form with which the lawyer is familiar, thus providing quick access to the desired information. Defence counsel ought to stress those aspects of his client's personal background that are favourable as well as any mitigating factors surrounding the circumstances of the offence. Evidence at a sentencing hearing may be provided either by submissions of counsel or through sworn testimony. Prior to conviction, a witness cannot give his personal opinion of the character of the accused but only the general reputation in the community. After a conviction or a plea of guilty, there is a great deal more latitude given to defence counsel and character witnesses. Often, specific examples of good work or conduct of the accused are admissible and helpful to the judge in assessing the overall character of the accused. In the case of a first conviction for a serious offence where a jail sentence is a possibility or in the case of a young person without previous criminal record or in the cases where there are unusual circumstances respecting the offence or offender or both, counsel may request a pre-sentence report under s. 721. Prior to the trial or guilty plea, counsel for the accused should satisfy himself as to the accuracy of any previous criminal record and discuss it with his client with a view to analysing and obtaining possible explanations for the commission of particular offences to minimize the weight given it by the trial judge. Consider:



(a) the period of time that has elapsed since the last conviction; (b) any attempt the accused has made since that time to rehabilitate himself; (c) whether the previous offences are of an entirely different character from the present

charge.

C. THE SENTENCING OF ABORIGINAL OFFENDERS A recurrent theme identified by studies of the Canadian justice has been the substantial number of aboriginal inmates within our jails. Professor Michael Jackson, in an article entitled “Locking Up Natives in Canada” (Jackson, M., Locking Up Natives in Canada (1988-89), 23:2 U.B.C.Law Review 215), detailed the over-representation of aboriginal people within Canadian jails and observed that, “[m]ore than any other group in Canada they are subject to the damaging impacts of the criminal justice system’s heaviest sanctions.” Jackson described the situation in Manitoba and Saskatchewan as particularly distressing with aboriginal people, while comprising only 6-7% of the population, representing 46% and 60% of the respective prison admission. Figures from Statistics Canada confirm the continuation of this over-representation. In 1996-97, aboriginal persons comprised 74% and 58% of the admissions to provincial correctional centres in Saskatchewan and Manitoba (Statistics Canada) while comprising only 11% and 12% of the respective provincial populations. The Royal Commission on Aboriginal Peoples stressed the disproportionate number of aboriginal people going to jail and commented that the “over-representation of Aboriginal people in Canadian prisons has been the subject of special attention ... because the sentence of imprisonment carries with it the deprivation of liberty and represents Canadian society’s severest condemnation.” (Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, Ottawa: 1996 at 29.) Apparently in an attempt to address this concern, Parliament included the following provision in s. 718.2:

(e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.



The Supreme Court interpreted this subsection in R. v. Gladue, [1999] 1 S.C.R. 688, (1999) 133 C.C.C. (3d) 385, 23 C.R. (5th) 197. Although the effects of this judgement continue to evolve, there have been some obvious implications for the sentencing of aboriginal offenders. This subsection was interpreted as mandatory in application, remedial in nature and a “direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case”. Trial courts were directed to pay particular attention to whether aboriginal offenders had suffered the effects of poverty, substance abuse, overt racism and family and community breakdown. Gladue is important for a number of reasons. Arguably, two stand out. First, the “circumstances of aboriginal offenders” are to be considered within the historical context of the relationship between aboriginal people and Canadian society. It is difficult to give meaning to the “systemic and background” factors identified in Gladue without an understanding of Canadian history and how this has shaped the current reality faced by so many aboriginal offenders. Second, judges must seek alternatives to jailing aboriginal offenders, given their over-representation in our prisons and the apparent ineffectiveness of jail in reducing both recidivism and crime within aboriginal communities. This search for alternative sentences is to utilize, wherever possible, restorative principles of justice; including healing and rehabilitation and restoration of the relationship between the offender, victim and community. An evolving issue, raised through the application of Gladue, is the provision of the required information on “systemic and background factors” and on sentencing alternatives. A pre-sentence report is one valuable source. In R. v. Carratt [1999] S.J. 626 (Sask. QB), Klebuc J. suggested that a stay might be appropriate, in some cases, where the Crown refused to provide information on “systemic and background factors” which had contributed to an aboriginal offender coming before the court. To place some onus on the Crown in providing the evidence required by Gladue appears, to many, to be an obvious answer. This is especially so considering the difficulties defence counsel and individual offenders may have in accessing this information and considering the important role Crown prosecutors must play in reducing the number of aboriginal offenders in jail.



For a full discussion of the Aboriginal sentencing initiatives and alternatives approaches within Aboriginal communities see: Ross Gordon Green, Justice in Aboriginal Communities: Sentencing Alternatives (Saskatoon: Purich Publishing: 1998) and “Community Sentencing and Mediation: Within and Without the Circle” (1997) 25:1 Manitoba Law Journal at 77. Circle sentencing is an unconventional approach to sentencing which has been attempted in a number of courts dealing with aboriginal offenders. Upon a guilty plea or finding of guilt, a judge has the discretion to direct formation of a sentencing circle to consider an appropriate sentence. R. v. Moses (1992), 71 C.C.C. (3d) 347 (Yuk. Ter. Ct.) provides an extensive discussion of the process and practice of circle sentencing. A sentencing circle usually includes the judge, offender, defence counsel, crown prosecutor, police representative and victim and a cross-section the offender's community. Usually the judge indicates to the circle the upper range of penalty that would be likely if the matter were to be determined by a judge alone without the input and added resources of the circle. Circle members then proceed through discussion attempting to reach consensus on an appropriate sentence (with an emphasis achieving a "community based disposition"). In Saskatchewan, sentencing circles have been conducted in the Provincial Court in northern Saskatchewan and, more recently, in both the Provincial Court and the Court of Queens Bench elsewhere in the province. Most cases have involved aboriginal offenders from northern or rural communities. The exception to this is R. v. Morin, [1994] 1 C.N.L.R. 150 (Sask. Q.B.) which involved a Metis offender from Saskatoon. Judges of the Provincial Court for Saskatchewan in La Ronge, have developed criteria to assist selection of appropriate cases for circle sentencing. These criteria were set out by Fafard P.C.J. in R. v. Joseyounen [1995] 6 W.W.R. 348:

(a) the accused must agree to be referred to the sentencing circle. (b) the accused must have deep roots in the community in which the circle is held and from

which the participants are drawn.

(c) that there are elders or respected non-political community leaders willing to participate. (d) the victim is willing to participate and has been subjected to no coercion or pressure in so

agreeing.



(e) the Court should try to determine beforehand, as best it can, if the victim is subject to

battered woman's syndrome. If she is, then she should have counseling and be accompanied by a support team in the circle.

(f) disputed facts have been resolved in advance. (g) the case is one which a Court would be willing to take a calculated risk and depart from the

usual range of sentencing. A subsequent discussion of circle sentencing can be found in R. v. Taylor (1997) 122 C.C.C. (3d) 376 (Sask. C.A.). This was a sexual assault case from La Ronge. The judgements of Bayda C.J.S. and Cameron J.A. provide an interesting contrast regarding the appropriateness of this sentencing circle. Dealing with the circumstances of and finding the appropriate sentences for aboriginal offenders will continue to be a major focus of counsel involved in criminal practice. In addition to different approaches which may be tried at sentencing, an evolving question is whether the new sentencing provisions of the Criminal Code, and in particular the conditional sentence of imprisonment, will provide a means by which the over-representation of aboriginal persons within our jails may be addressed.


APPENDICES

Saskatchewan: Bar Admission Program A - 1 Criminal Procedure – Sentencing Appendix A – Procedure by Second or Subsequent Conviction


PROCEDURE BY SECOND OR SUBSEQUENT CONVICTION

ONE PREVIOUS CONVICTION AND PRESENT OFFENCE DATE

ARE WITHIN 2 YEARS

PROCEED BY WAY OF SECOND CONVICTION

TWO OR MORE PREVIOUS CONVICTIONS AND PRESENT

OFFICE DATE ARE ALL WITHIN 2 YEARS

PROCEED BY WAY OF SUBSEQUENT CONVICTION

NO PREVIOUS CONVICTION FOR 2 YEARS BUT TWO PREVIOUS

CONVICTIONS AND PRESENT OFFENCE DATE ARE ALL

WITHIN 4 YEARS

PROCEED BY WAY OF SECOND CONVICTION

THREE OR MORE PREVIOUS CONVICTIONS AND PRESENT

OFFENCE DATE ARE ALL WITHIN 4 YEARS

PROCEED BY WAY OF SUBSEQUENT CONVICTION

A – 2 Saskatchewan: Bar Admission Program Criminal Procedure – Sentencing Appendix A – Procedure by Second or Subsequent Conviction


(This page has been intentionally left blank.)

Saskatchewan: Bar Admission Program B - 1 Criminal Procedure – Sentencing Appendix B – Saskatchewan Corrections and Public Safety Youth Extrajudicial Sanctions Policy (2004)

Revised June 2005 Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.

Reproduced with permission from Saskatchewan Justice - January 2005

B – 2 Saskatchewan: Bar Admission Program Criminal Procedure – Sentencing Appendix B – Saskatchewan Corrections and Public Safety Youth Extrajudicial Sanctions Policy (2004)














(This page has been intentionally left blank.)

Saskatchewan: Bar Admission Program C - 1 Criminal Procedure – Sentencing Appendix C – Saskatchewan Justice Alternative Measures Policy (2004)



C – 2 Saskatchewan: Bar Admission Program Criminal Procedure – Sentencing Appendix C – Saskatchewan Justice Alternative Measures Policy (2004)



Saskatchewan: Bar Admission Program C - 3 Criminal Procedure – Sentencing Appendix C – Saskatchewan Justice Alternative Measures Policy (2004)



C – 4 Saskatchewan: Bar Admission Program Criminal Procedure – Sentencing Appendix C – Saskatchewan Justice Alternative Measures Policy (2004)



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