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Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2021-11-17 and last amended on 2021-08-27. Previous Versions

PART XXIIISentencing (continued)

Punishment Generally (continued)

Marginal note:Commencement of sentence

  •  (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

  • Marginal note:Time at large excluded from term of imprisonment

    (2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.

  • Marginal note:Determination of sentence

    (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

  • Marginal note:Exception

    (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

  • Marginal note:Reasons

    (3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

  • Marginal note:Record of proceedings

    (3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.

  • Marginal note:Validity not affected

    (3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court.

  • Marginal note:When time begins to run

    (4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court or the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence.

  • Marginal note:When fine imposed

    (5) Notwithstanding subsection (1), where the sentence that is imposed is a fine with a term of imprisonment in default of payment, no time prior to the day of execution of the warrant of committal counts as part of the term of imprisonment.

  • Marginal note:Application for leave to appeal

    (6) An application for leave to appeal is an appeal for the purposes of this section.

  • R.S., 1985, c. C-46, s. 719
  • R.S., 1985, c. 27 (1st Supp.), s. 157
  • 1995, c. 22, s. 6
  • 2009, c. 29, s. 3
  • 2018, c. 29, s. 66

Procedure and Evidence

Marginal note:Sentencing proceedings

  •  (1) A court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed.

  • Marginal note:Court-supervised programs

    (2) The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program.

  • R.S., 1985, c. C-46, s. 720
  • 1995, c. 22, s. 6
  • 2008, c. 18, s. 35

Marginal note:Report by probation officer

  •  (1) Subject to regulations made under subsection (2), where an accused, other than an organization, pleads guilty to or is found guilty of an offence, a probation officer shall, if required to do so by a court, prepare and file with the court a report in writing relating to the accused for the purpose of assisting the court in imposing a sentence or in determining whether the accused should be discharged under section 730.

  • Marginal note:Provincial regulations

    (2) The lieutenant governor in council of a province may make regulations respecting the types of offences for which a court may require a report, and respecting the content and form of the report.

  • Marginal note:Content of report

    (3) Unless otherwise specified by the court, the report must, wherever possible, contain information on the following matters:

    • (a) the offender’s age, maturity, character, behaviour, attitude and willingness to make amends;

    • (b) subject to subsection 119(2) of the Youth Criminal Justice Act, the history of previous dispositions under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the history of previous sentences under the Youth Criminal Justice Act, and of previous findings of guilt under this Act and any other Act of Parliament;

    • (c) the history of any alternative measures used to deal with the offender, and the offender’s response to those measures; and

    • (d) any matter required, by any regulation made under subsection (2), to be included in the report.

  • Marginal note:Idem

    (4) The report must also contain information on any other matter required by the court, after hearing argument from the prosecutor and the offender, to be included in the report, subject to any contrary regulation made under subsection (2).

  • Marginal note:Copy of report

    (5) The clerk of the court shall provide a copy of the report, as soon as practicable after filing, to the offender or counsel for the offender, as directed by the court, and to the prosecutor.

  • R.S., 1985, c. C-46, s. 721
  • R.S., 1985, c. 27 (1st Supp.), s. 203
  • 1995, c. 22, s. 6
  • 1999, c. 25, s. 16(Preamble)
  • 2002, c. 1, s. 183
  • 2003, c. 21, s. 15

Marginal note:Victim impact statement

  •  (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.

  • Marginal note:Inquiry by court

    (2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1).

  • Marginal note:Adjournment

    (3) On application of the prosecutor or a victim or on its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement referred to in subsection (1) or to present evidence in accordance with subsection (9), if the court is satisfied that the adjournment would not interfere with the proper administration of justice.

  • Marginal note:Form

    (4) The statement must be prepared in writing, using Form 34.2 in Part XXVIII, in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction.

  • Marginal note:Presentation of statement

    (5) The court shall, on the request of a victim, permit the victim to present the statement by

    • (a) reading it;

    • (b) reading it in the presence and close proximity of any support person of the victim’s choice;

    • (c) reading it outside the court room or behind a screen or other device that would allow the victim not to see the offender; or

    • (d) presenting it in any other manner that the court considers appropriate.

  • Marginal note:Photograph

    (6) During the presentation

    • (a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings; or

    • (b) if the statement is presented by someone acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings.

  • Marginal note:Conditions of exclusion

    (7) The victim shall not present the statement outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.

  • Marginal note:Consideration of statement

    (8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.

  • Marginal note:Evidence concerning victim admissible

    (9) Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.

  • R.S., 1985, c. C-46, s. 722
  • 1995, c. 22, s. 6
  • 1999, c. 25, s. 17(Preamble)
  • 2000, c. 12, s. 95
  • 2015, c. 13, s. 25

Marginal note:Copy of statement

 The clerk of the court shall provide a copy of a statement referred to in subsection 722(1), as soon as practicable after a finding of guilt, to the offender or counsel for the offender, and to the prosecutor.

  • 1995, c. 22, s. 6
  • 1999, c. 25, s. 18(Preamble)

Marginal note:Community impact statement

  •  (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.

  • Marginal note:Form

    (2) The statement must be prepared in writing, using Form 34.3 in Part XXVIII, in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction.

  • Marginal note:Presentation of statement

    (3) The court shall, on the request of the individual making the statement, permit the individual to present the statement by

    • (a) reading it;

    • (b) reading it in the presence and close proximity of any support person of the individual’s choice;

    • (c) reading it outside the court room or behind a screen or other device that would allow the individual not to see the offender; or

    • (d) presenting it in any other manner that the court considers appropriate.

  • Marginal note:Conditions of exclusion

    (4) The individual making the statement shall not present it outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.

  • Marginal note:Copy of statement

    (5) The clerk of the court shall, as soon as feasible after a finding of guilt, provide a copy of the statement to the offender or counsel for the offender, and to the prosecutor.

  • 1999, c. 25, s. 18(Preamble)
  • 2015, c. 13, s. 26

Marginal note:Submissions on facts

  •  (1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.

  • Marginal note:Submission of evidence

    (2) The court shall hear any relevant evidence presented by the prosecutor or the offender.

  • Marginal note:Production of evidence

    (3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.

  • Marginal note:Compel appearance

    (4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence.

  • Marginal note:Hearsay evidence

    (5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person

    • (a) has personal knowledge of the matter;

    • (b) is reasonably available; and

    • (c) is a compellable witness.

  • R.S., 1985, c. C-46, s. 723
  • 1995, c. 22, s. 6

Marginal note:Information accepted

  •  (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

  • Marginal note:Jury

    (2) Where the court is composed of a judge and jury, the court

    • (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

    • (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

  • Marginal note:Disputed facts

    (3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

    • (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

    • (b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

    • (c) either party may cross-examine any witness called by the other party;

    • (d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

    • (e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

  • R.S., 1985, c. C-46, s. 724
  • 1995, c. 22, s. 6

Marginal note:Other offences

  •  (1) In determining the sentence, a court

    • (a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;

    • (b) shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;

    • (b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:

      • (i) the Attorney General and the offender consent,

      • (ii) the court has jurisdiction to try each charge,

      • (iii) each charge has been described in open court,

      • (iv) the offender has agreed with the facts asserted in the description of each charge, and

      • (v) the offender has acknowledged having committed the offence described in each charge; and

    • (c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.

  • Marginal note:Attorney General’s consent

    (1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.

  • Marginal note:No further proceedings

    (2) The court shall, on the information or indictment, note

    • (a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and

    • (b) any facts considered in determining the sentence under paragraph (1)(c),

    and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal.

  • R.S., 1985, c. C-46, s. 725
  • R.S., 1985, c. 27 (1st Supp.), s. 158, c. 1 (4th Supp.), s. 18(F)
  • 1995, c. 22, s. 6
  • 1999, c. 5, s. 31
 
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