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Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2024-05-28 and last amended on 2024-01-14. Previous Versions

PART XXIIISentencing (continued)

Procedure and Evidence (continued)

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

Marginal note:Offender may speak to sentence

 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say.

  • R.S., 1985, c. C-46, s. 726
  • R.S., 1985, c. 27 (1st Supp.), s. 159, c. 1 (4th Supp.), s. 18(F)
  • 1995, c. 22, s. 6

Marginal note:Relevant information

 In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.

  • 1995, c. 22, s. 6

Marginal note:Reasons for sentence

 When imposing a sentence, a court shall state the terms of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceedings.

  • 1995, c. 22, s. 6

Marginal note:Inquiry by court

 When imposing a sentence, a court must inquire of the prosecutor if reasonable steps were taken to determine whether the victim wishes to receive information regarding the sentence and its administration and must, if known, enter the victim’s wishes into the record of the proceedings.

Marginal note:Previous conviction

  •  (1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.

  • Marginal note:Procedure

    (2) Where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court shall, on application by the prosecutor and on being satisfied that the offender was notified in accordance with subsection (1), ask whether the offender was previously convicted and, if the offender does not admit to any previous convictions, evidence of previous convictions may be adduced.

  • Marginal note:Where hearing ex parte

    (3) Where a summary conviction court holds a trial pursuant to subsection 803(2) and convicts the offender, the court may, whether or not the offender was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the offender and, if any such conviction is proved, may impose a greater punishment by reason thereof.

  • Marginal note:Organizations

    (4) If, under section 623, the court proceeds with the trial of an organization that has not appeared and pleaded and convicts the organization, the court may, whether or not the organization was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the organization and, if any such conviction is proved, may impose a greater punishment by reason of that conviction.

  • Marginal note:Section does not apply

    (5) This section does not apply to a person referred to in paragraph 745(b).

  • R.S., 1985, c. C-46, s. 727
  • R.S., 1985, c. 27 (1st Supp.), s. 160
  • 1995, c. 22, s. 6
  • 2003, c. 21, s. 16

Marginal note:Sentence justified by any count

 Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence.

  • R.S., 1985, c. C-46, s. 728
  • 1995, c. 22, s. 6

Marginal note:Proof of certificate of analyst

  •  (1) In

    • (a) a prosecution for failure to comply with a condition in a probation order that the accused not have in possession or use drugs, or

    • (b) a hearing to determine whether the offender breached a condition of a conditional sentence order that the offender not have in possession or use drugs,

    a certificate purporting to be signed by an analyst stating that the analyst has analyzed or examined a substance and stating the result of the analysis or examination is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate.

  • Marginal note:Definition of analyst

    (2) In this section, analyst means a person designated as an analyst under the Controlled Drugs and Substances Act or the Cannabis Act.

  • Marginal note:Notice of intention to produce certificate

    (3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

  • (4) and (5) [Repealed, 2008, c. 18, s. 36]

  • Marginal note:Requiring attendance of analyst

    (6) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

  • R.S., 1985, c. C-46, s. 729
  • 1995, c. 22, s. 6
  • 1999, c. 31, s. 69
  • 2004, c. 12, s. 11(E)
  • 2008, c. 18, s. 36
  • 2018, c. 16, s. 221

Marginal note:Proof of certificate of analyst — bodily substance

  •  (1) In a prosecution for failure to comply with a condition in a probation order that the accused not consume drugs, alcohol or any other intoxicating substance, or in a hearing to determine whether the offender breached such a condition of a conditional sentence order, a certificate purporting to be signed by an analyst that states that the analyst has analyzed a sample of a bodily substance and that states the result of the analysis is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person who appears to have signed the certificate.

  • Marginal note:Definition of analyst

    (2) In this section, analyst has the same meaning as in section 320.11.

  • Marginal note:Notice of intention to produce certificate

    (3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

  • Marginal note:Requiring attendance of analyst

    (4) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

  • 2011, c. 7, s. 2
  • 2018, c. 21, s. 23

Absolute and Conditional Discharges

Marginal note:Conditional and absolute discharge

  •  (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

  • Marginal note:Period for which appearance notice, etc., continues in force

    (2) Subject to Part XVI, if an accused who has not been taken into custody or who has been released from custody under any provision of that Part pleads guilty to or is found guilty of an offence but is not convicted, the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.

  • Marginal note:Effect of discharge

    (3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

    • (a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;

    • (b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and

    • (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

  • Marginal note:Where person bound by probation order convicted of offence

    (4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.

  • R.S., 1985, c. C-46, s. 730
  • 1995, c. 22, s. 6
  • 1997, c. 18, s. 141
  • 2003, c. 21, s. 17
  • 2019, c. 25, s. 296
 

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