E. Sentences Other Than Imprisonment

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 489-493

Contenidos

• 1) Alternative Measures.
• 2) Absolute and Conditional Discharges.
• 3) Suspended Sentences and Probation.
• 4) Conditional Sentences of Imprisonment.
• 5) Fines.
• 6) Restitution.
• 7) Forfeiture.

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1) Alternative Measures

Alternative measures allow an accused who accepts responsibility for a crime to engage in supervised activities in the community, without a formal determination of guilt or innocence at trial. They are contemplated under section 10 of the Youth Criminal Justice Act and under section 717 of the Criminal Code. There must be sufficient evidence to proceed with the charge; the accused must accept responsibility for the offence charged and voluntarily agree to the alternative measures. There are a great variety of alternative measures. Some may focus on various forms of community service and/or education for the offender while others may be based on restorative justice.

2) Absolute and Conditional Discharges

When the accused is charged with an offence not subject to imprisonment for fourteen years or life and without a minimum sentence, the court can, instead of convicting the accused, order an absolute or conditional discharge if "it considers it to be in the best interest of the accused and not contrary to the public interest."⁶⁵The best interests of the accused include the accused’s good character and the harm that can follow from a conviction. The public interest includes society’s interest in the general deterrence of the offence. Absolute or conditional discharges do not apply only to trivial or technical violations of the Code, but they should not routinely be applied to any particular offence.⁶⁶If

the conditions of a conditional discharge are breached, the offender may be sentenced for the original offence as well as for the crime of breaching the probation order.

3) Suspended Sentences and Probation

After convicting an accused, the court can suspend sentence and make a probation order, or make a probation order in addition to a fine or sentence of imprisonment of not more than two years. Probation orders can be made even though the accused’s sentence would normally have been more than two years in the absence of consideration of time that

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the accused spent in pre-trial custody.⁶⁷Probation orders may also be entered after absolute or conditional discharges.

Courts make probation orders "having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission."⁶⁸Compulsory conditions of a probation order are that the offender keep the peace and be of good behaviour, appear before the court when required and notify the court or probation officer of changes of address or employment. Optional conditions are regular reports to the probation officer, abstaining from the consumption of alcohol or other drugs, abstaining from possessing a gun, supporting dependants, performing up to 240 hours of community service, and complying with other reasonable conditions designed to protect society and facilitate the offender’s successful reintegration into the community.⁶⁹The court does not have the power to require an offender to provide bodily substances for testing as part of an abstention order.⁷⁰

It is an offence not to comply with a probation order without a reasonable excuse.⁷¹Corporations and other organizations can now be placed on probation under section 732.1 of the Code.

In Preston,⁷²the British Columbia Court of Appeal upheld a suspended sentence for an accused convicted of three counts of possession of heroin. The accused’s probation orders required her to attend a drug rehabilitation facility and perform fifty hours of community service. Wood J.A. reasoned that only overcoming the accused’s addiction would break her cycle of crime. He presumed that there would be adequate resources to supervise the accused while on probation and that she would be brought back before the court if she breached her probation order.

4) Conditional Sentences of Imprisonment

If the court imposes a sentence of imprisonment of less than two years, it may, under section 742.1, order that the sentence be served in the community if the court is satisfied that this would not endanger the safety of the community and would not be inconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to

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718.2. In R. v. Proulx,⁷³the Supreme Court indicated that only offences with a mandatory minimum sentence of imprisonment are categorically excluded from conditional sentences, but section...