Sentencing and the Administration of Sentences: Recent Developments (2011-2015)

Sentencing tools were much in the spotlight as the Canadian Government continued to promote law-and-order legislation during the 41st Parliament.

New mandatory minimum sentences were among reforms to the sentencing regime introduced during the past four years.

Other reforms included the enhancement of victim rights, the creation of specific offences and risk management measures, as well as changes to rules governing record suspensions. This HillNote reviews the highlights of these changes.

During the span of the 41st Parliament, both the police-reported crime rate, which measures volume of crime, and the Crime Severity Index, which measures the seriousness of crime, continued their long-term downward trends.

Police-reported Crime Severity Index and Crime Rate, Canada, 2004 to 2014

Police-reported Crime Severity Index and Crime Rate, Canada, 2004 to 2014
Note: The crime rate is based upon Criminal Code incidents, excluding traffic offences. The Crime Severity Index is based on Criminal Code incidents, including traffic offences, as well as other federal statute violations. 
Source: Figure prepared by the authors using data from Statistics Canada, Canadian Centre for Justice Statistics and Uniform Crime Reporting Survey.

 

Mandatory minimum sentences

In the 41st Parliament, a number of mandatory minimum sentences (MMSs) were increased, or were added to the Criminal Code. In addition, some were introduced for the first time in the Controlled Drugs and Substances Act (CDSA) to address serious offences, such as dealing drugs for organized crime or trafficking near a school.

Mandatory minimum sentences are not new to criminal justice. When the Criminal Code was first enacted in 1892, only six offences triggered MMSs of imprisonment.

Today, more than 100 MMSs of imprisonment are prescribed, including all circumstances for which they must be imposed, for example, for first and subsequent offences or in the case of hybrid offences, for about 50 Criminal Code offences.

Proponents of MMSs say they promote uniformity in sentencing and reduce disparity. Opponents argue that, by limiting judicial discretion, they can prevent the imposition of just sentences based on the proportionality principle. According to this principle, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (s.718.1 of the Criminal Code).

Although many jurisdictions use MMSs, the Canadian approach to such legislation is in contrast with most common law jurisdictions, where judges can impose a lesser sentence in exceptional circumstances.

New and Increased Mandatory Minimum Sentences of Incarceration in the Criminal Code during the 41st Parliament

Bill C-10: Safe Streets and Communities Act

Bill C-26: Tougher Penalties for Child Predators Act

On Summary Conviction On Indictment
Sexual interference (s. 151) From 14 to 90 days From 45 days to 1 year
Invitation to sexual touching (s. 152) From 14 to 90 days From 45 days to 1 year
Sexual exploitation (s. 153(1)) From 14 to 90 days From 45 days to 1 year
Possession of child pornography (s. 163.1(4)) From 14 days to 6 months From 45 days to 1 year
Accessing child pornography (s. 163.1(4.1)) From 14 days to 6 months From 45 days to 1 year
Parent or guardian procuring sexual activity – victim under 18 (s. 170) n/a From 45 days to 1 year
Householder permitting sexual activity – victim under 18 (s. 171) n/a From 45 to 1 year
Providing sexually explicit material to child (s. 171.1) From 30 to 90 days From 90 days to 6 months
Internet luring of a child (s. 172.1) From 90 days to 6 months 1 year
Use telecommunications for the purpose of committing a sexual offence against a child (s. 172.2) From 90 days to 6 months 1 year
Incest – victim under 16 (s. 155(2)) n/a 5 years
Bestiality in presence of a person under 16 (s. 160(3)) 6 months 1 year
Exposure of genital organs to a person under 16 (s. 173(2)) 30 days 90 days
Sexual assault – victim under 16 (s. 271) From 90 days to 6 months 1 year
Aggravated sexual assault – victim under 16 (s. 273) n/a 5 years
Bill C-36: Protection of Communities and Exploited Persons Act
Trafficking of adults (s. 279.01) n/a 4 or 5 years if aggravated circumstances
Receiving material benefit for trafficking a child

(s. 279.02(2))

n/a 2 years
Withholding or destroying documents to facilitate trafficking of a child (s. 279.03(2)) n/a 1 year
Obtaining sexual services of a child (s. 286.1(2)) n/a 6 months (1st offence) or 1

year (subsequent offences)

Receiving material benefit from the sexual services of a child(s. 286.2(2)) n/a 2 years
Procuring a child (s. 286.3(2)) n/a 5 years
Bill C-10: An Act to amend the Criminal Code (trafficking in contraband tobacco)
Selling, etc. of tobacco products and raw leaf tobacco (s. 121.1) – more than 10 kg n/a 90 days (2nd offence), 190 days (3rd offence), 2 years less a day (subsequent offences)
Bill C-35: Justice for Animals in Service Act
Killing or injuring a law enforcement animal in the commission of the offence (s. 445.01) n/a 6 months
Bill C-217: An Act to amend the Criminal Code (mischief relating to war memorials)
Mischief relating to war memorial (s. 430(4.1)) 14 days (2nd offence) or 30 days (subsequent offences) 14 days (2nd offence) or 30

days (subsequent offences)

Bill C-299: An Act to amend the Criminal (kidnapping of young person)
Kidnapping – victim under 16 (s. 279(1.1)) n/a 5 years – with exceptions
Source: Table prepared by the authors using data from LEGISinfo (Parliament of Canada website).

 

Enhancement of victims’ rights

Legislative changes introduced during the 41st Parliament built upon pre-existing measures protecting victims in criminal proceedings, from the time that a victim reports an offence and throughout the investigation, the prosecution and the corrections and conditional release process.

The Canadian Victims Bill of Rights (CVBR) was created by Bill C-32 to recognize the rights of victims to information, protection, participation and restitution. It provides for a complaint mechanism, but no binding dispute resolution mechanism.

Changes were also made to the victim surcharge provisions, which are designed to increase the accountability of offenders by imposing a financial penalty on them. Bill C-37 made victim surcharges mandatory for all offences under the Criminal Code and the CDSA, and doubled victim surcharge amounts.

Bill C-10 allowed victims of terrorism to sue individuals, organizations and terrorist entities for loss or damage suffered as a result of conduct committed in Canada or abroad. Victims may also sue foreign states that have supported terrorist entities committing such acts.

Highlights of other Amendments Enhancing Victims’ Rights

Bill C-10 , Bill C-32 and Bill C-479

Right to Protection

  • Wider definition of “victim” in the Criminal Code and the Corrections and Conditional Release Act
  • Increased procedural protections for victims in criminal trials (e.g. increased availability of testimonial supports and publication bans)
  • Enhanced protection of records containing the personal information of victims in sexual offence trials
  • Changes to the sentencing provisions highlighting the importance of the protection of society and the denunciation of the harm to both victims and the community
  • Enhanced consideration of victim concerns by the Parole Board of Canada (PBC) with respect to offenders subject to long-term supervision and obligation to take reasonable steps to inform a victim of the PBC’s intention to remove or vary a condition imposed on the offender
Right to Information

  • Victims may request copies of bail, conditional sentence and probation orders
  • Steps are to be taken to inform victims of plea agreements in serious cases
  • Facilitated release to victims of information about where offenders are serving their sentences, their correctional plans, conditional releases
  • Victims may be provided with a photograph of the offender under a sentence prior to his or her release into the community.
  • Notification of victims when offenders waive the right to a PBC review hearing
Right to Participation

  • Greater consideration of victim and community impact statements
  • Victims can register with the Correctional Service of Canada for restorative justice and mediation services
Right to Restitution

  • Orders for victim restitution are to be considered in all cases where an offender is convicted or discharged, despite the financial means of the offender
Source: Table prepared by the authors.

 

Measures to address specific types of harm

Some legislation sought to address specific types of harm through different measures, such as:

  • the creation of new offences (see table below);
  • the addition of specific aggravating factors for sentencing purposes (for example, victim vulnerability and impersonation of a peace officer for the purpose of committing an offence);
  • consecutive sentences of imprisonment for certain offences, such as child pornography with another sexual offence and sexual offences committed against more than one child.

New and Amended Criminal Code Offences Introduced during the 41st Parliament

Bill

1st Session

C-10

Providing sexually explicit material to a child in Canada or abroad (s. 171.1)

Agreeing with another person, via telecommunication, to commit a sexual offence against a child in Canada or abroad (s. 172.2)

C-309

Wearing a mask or other disguise while taking part in a riot or an unlawful assembly (ss. 65(2) and 66(2))

C-310

Trafficking in persons and related offences outside of Canada by Canadian citizens or permanent residents (s. 7(4.11))

S-7

Leaving or attempting to leave Canada with the intent to commit an offence equivalent to a Canadian terrorism offence (ss. 83.181, 83.191, 83.201and 83.202)

Endangering the safety of an aircraft by communicating false information outside of Canada (s. 7(2))

S-9

Prohibitions on activities related to nuclear or radioactive material or facilities (ss. 82.3, 82.4, 82.5 and 82.6)

2nd Session

C-10

Selling non-stamped or raw leaf tobacco products (s. 121.1)

C-13

Prohibition on activities related to the publishing and distribution of an intimate image of a person (s. 162.1)

Importing or making available a device used for the theft of telecommunication services (s. 327)

Making available a computer virus (s. 342.2)

Sending false information, indecent or harassing communications, regardless of the method or technology used (s. 371 and 372)

C-35

Killing or injuring a law enforcement, military or service animal (s. 445.01(1))

C-36

Purchasing the sexual services of an adult or communicating for that purpose (s. 286.1)

Advertising sexual services (s. 286.4)

C-51

Advocating or promoting the commission of terrorism offences (s. 83.221)

C-217

Committing mischief in relation to a war memorial (s.430(4.11))

C-394

Recruiting, soliciting, encouraging, coercing or inviting a person to join a criminal organization (s. 467.111)

S-7

 

Celebrating, aiding or participating in a marriage knowing that one of the parties is marrying against his or her will (section 293.1) or is under the age of 16 (s. 293.2)
Source: Table prepared by the authors using data from LEGISinfo (Parliament of Canada website).

 

Risk management

Risk management is a key component in evaluating an offender’s likelihood of reoffending. Factors to be considered include an offender’s criminal and employment record, education, physical and mental health, and motivations.

During the 41st Parliament, specific risks to public safety were addressed through targeted prevention initiatives. For example, Bill S-7 reinstated investigative hearings and expanded preventative arrest provisions dealing with terrorist activities. Bill C-51 lowered the threshold to arrest a person without a warrant where he or she is likely to commit a terrorist activity.

Bill C-10 restricted the availability of conditional sentences (that is, house arrest) for all offences for which the maximum term of imprisonment is 14 years or life, and for other specified offences prosecuted by way of indictment.

Bill C-14  allowed a court to designate an accused found not criminally responsible on account of mental disorder for a serious personal injury offence as a “high-risk accused”; this ensures a more restrictive framework to manage the risk they may pose to society.

Bill C-42 strengthened the provisions dealing with mandatory and discretionary weapons prohibition orders when the offender is convicted of an offence involving domestic violence.

Record suspensions

A record suspension, formerly referred to as a pardon, is a formal attempt to remove the stigma attached to having a criminal record. It helps an offender obtain housing and employment and is believed to encourage offenders to be law abiding, thereby increasing public safety. About 3.8 million Canadians have a criminal record.

Bill C-10 extended the waiting period before applying for a record suspension for summary conviction offences from three to five years and, from five to ten years for indictable offences. It also excluded individuals convicted of offences listed in Schedule 1 of the Criminal Records Act (mainly offences of a sexual nature) from the records suspension regime. Since 2010, processing fees have increased from $50 to $631.

Further information on the bills discussed herein and other bills can be found in the Library of Parliament Research Publications webpage and in LEGISinfo. Library of Parliament legislative summaries outline all government bills and selected private members bills considered by Parliament, explain their purpose and history and analyze key clauses.

 

Authors: Lyne Casavant, Tanya Dupuis and Christine Morris, Library of Parliament