The Role of Defence Counsel at Sentencing

• Author: Naomi M Lutes
• Pages: 129-152

129

CHAPTER SEVEN

The Role of Defence Counsel at

Sentencing

Naomi M Lutes

e end of a trial is not the end of the criminal process for an accused

person. Far from it. A judge must determine whether an oender will

go to jail, how long the sentence will be, what ancillary orders will

ow, and whether the sentence may be served in the community. e

sentencing hearing is, in many ways, the most important — most con-

sequential — component of the criminal justice process for an accused

person. As Dickson J wrote in R v Gardiner, quoting Sir James Fitzpat-

rick Stephens, “[T]he sentence is the gist of the proceeding. It is to the

trial what the bullet is to the powder.”

Nearly two-thirds of adult criminal cases in Canada result in a nd-

ing of guilt. A sentencing hearing will, as a result, occur for about two-

thirds of adults who encounter the criminal justice system. Since most

of these oenders will have decided to plead guilty rather than have a

trial before a judge or jury, “[s]entencing is, in respect of most oenders,

the only signicant decision the criminal justice system is called upon

 []  SCR  at  [Gardiner].

 Zoran Miladinovic, “Adult Criminal and Youth Court Statistics in Canada, /”

Juristat, Statistics Canada Catalogue no --X ( January ), online: www.

statcan.gc.ca/n/pub/--x//article/-eng.htm.

130 |   

to make.” It is a vital aspect of the trial process — both from a proced-

ural and a philosophical perspective. Arguably, sentencing is where the

ultimate right — liberty — is squarely placed in jeopardy.

While other chapters within this text discuss many of the substan-

tive components of sentencing, this chapter will examine the role of the

defence lawyer within the sentencing process. Although the imposition

of sentence is ultimately within the purview of the judge, both Crown

and defence counsel play a critical role in assisting the court in arriving

at a t sentence. While Crown counsel represents the state and acts in

the public interest, the defence lawyer unreservedly advocates in favour

of the oender. e essential role of defence counsel at sentencing is to

eectively and persuasively advance to the court a proposed sentence that

is t and in the best interests of the oender. Eective advocacy by defence

counsel during a sentencing hearing can mean the dierence between

a carceral sentence and a sentence served in the community; between a

criminal conviction and a non-conviction nding of guilt; between a sig-

nicant ne and community service.

In the context of sentencing, the issues to which a defence law-

yer must advert could ll an entire book. Every sentencing principle

and consideration is relevant to the defence lawyer’s task. is chapter

focuses on the adversarial nature of the sentencing hearing, the role

of the defence lawyer in advocating for a particular sentence, ethical

considerations, and the myriad collateral and ancillary considerations

that could aect an oender.

A. THE ROLE OF DEFENCE COUNSEL IN THE LEGAL SYSTEM

e right to counsel is a cornerstone of Canada’s criminal justice sys-

tem. is right has long been recognized as a principle of fundamental

justice — essential to a free and democratic society. An accused person

has a constitutional right to the advice and representation of a lawyer

 Gardiner, above note  at .

 This chapter focuses on adult oenders. For a comparison of the adult and youth sen-

tencing regimes, see Chapter  in this book.