Canadian criminal law is governed by the Criminal Code, which includes the principles and powers in relation to criminal sentencing in Canada.
A judge sentences a person after they have been found guilty of a crime. After a determination is made about the facts being relied on for sentencing, and hearing from both the Crown and the defence about what the appropriate sentence should be, the judge must pick from a number of different sentencing options found in the Criminal Code, based on a number of factors. Some offences have a minimum sentence, and there may also be a maximum sentence depending on the nature of the offence.
The maximum determinate sentence is a life sentence with a 25-year parole ineligibility period. For offences committed prior to 2 December 2011 all life sentences and related parole ineligibility periods are served concurrently (at the same time). In cases of multiple murder, where the offence occurred after 2 December 2011 (the date new legislation came into force), a court may, after considering any jury recommendation, order consecutive parole ineligibility periods for each murder. There are also options for an indeterminate sentence. There is no death penalty in Canada, making life imprisonment the most severe punishment to be imposed in the country.
Sentencing hearing
When a person is found guilty of a crime, a finding has been made that all essential elements of the offence have been met (either by admission through a guilty plea or after the elements have been proven beyond a reasonable doubt in a trial). However, there may be facts that did not have to be determined for the defendant's guilt to be decided (i.e. severity of a victim's injuries, motivation for the crime, etc.). If the guilty verdict was determined by a jury, the judge may have to determine what facts the jury relied on to reach their verdict (since jury deliberations are confidential in Canada).
When the additional facts are in dispute, the party relying on the fact has the burden to prove it. The general standard of proof at a sentencing hearing is a "balance of probabilities". If the Crown, however, is relying on an aggravating fact or a prior conviction, the burden of proof is "beyond a reasonable doubt".
There are a number of exceptions to the normal rules of evidence. For example, the judge may permit hearsay evidence. A probation officer can interview the defendant and other people associated with the defendant and file a report. A victim impact statement may be filed with the court (with the option of having it read out by the victim). The defendant is also given an opportunity to personally speak to the court.
Appeals
Either the Crown or the accused may appeal against a sentence. An appellant must demonstrate that either the sentence imposed was "demonstrably unfit" or the court "erred in principle," for example by placing undue emphasis on a particular sentence principle. Except for an appeal against a finding that the accused is a dangerous or long-term offender, the court upon allowing an appeal must then determine a fit sentence and may not remit the matter back to the court of first instance. The court of appeal considers the sentence anew and the sentence may be more or less severe than the sentence imposed, regardless of who appealed; this is referred to as the "Hill Principle."
There are some additional considerations taken into account at an appeal. Given the high stakes for both the accused and the safety of the public, fresh evidence of post-sentence conduct is routinely admitted. Where the appellant was granted bail pending appeal and has presented fresh evidence indicating that reincarceration would be unduly harsh, the court of appeal may reduce a sentence despite the absence of a reviewable error. Where the Crown appeals against the sentence and the court of appeal determines that a longer period of incarceration is warranted, the court will often stay the order if the accused has been out of custody for a lengthy period of time or has fully complied with the terms of a non-carceral sentence. The court of appeal will only order the re-incarceration of the accused in cases where the facts support it or where the additional period of incarceration is substantial. Accused persons will also be given credit for complying with the terms of a non-carceral sentence.