Sentencing Brief (Generic): Difference between revisions
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<u>'''B. Range of Sentence'''</u> | <u>'''B. Range of Sentence'''</u> | ||
[X] Generally across Canada, the sentencing range for the offence of ... ranges anywhere between | [X] Generally across Canada, the sentencing range for the offence of ... ranges anywhere between ... | ||
[X] The recommended sentence presented here is in light of cases from within the province: | [X] The recommended sentence presented here is in light of cases from within the province: | ||
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[X] The recommended sentence presented here is in light of cases from within the province: | [X] The recommended sentence presented here is in light of cases from within the province: | ||
<Center><u>'''PART VI: AGGRAVATING AND MITIGATING FACTORS IN THIS CASE'''</u></center> | <Center><u>'''PART VI: AGGRAVATING AND MITIGATING FACTORS IN THIS CASE'''</u></center> | ||
[X] Section 718.2 obliges the sentencing judge to increase and decrease a potential sentence on consideration of the enumerated aggravating and mitigating features that go to the | [X] Section 718.2 obliges the sentencing judge to increase and decrease a potential sentence on consideration of the enumerated aggravating and mitigating features that go to the gravity of the offence and degree of responsibility of the offender. The section states that: | ||
:'''{{small|Other sentencing principles<br>718.2 A court that imposes a sentence shall also take into consideration the following principles:}} | |||
::{{small|(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,}} | |||
:::{{small|(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,}} | |||
:::{{small|(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,}} | |||
:::{{small|(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,}} | |||
:::{{small|(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,}} | |||
:::{{small|(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,}} | |||
:::{{small|(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,}} | |||
:::{{small|(v) evidence that the offence was a terrorism offence, or}} | |||
:::{{small|(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; <br>...}} | |||
:{{small|1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4.}} | |||
[X] In particular to this offence, the offence-specific factors found in s. XXX should be considered as well. | [X] In particular to this offence, the offence-specific factors found in s. XXX should be considered as well. |
Revision as of 15:39, 18 March 2019
All forms, templates and precedents, including anything found on this page, can be used without the need for any attribution. |
Briefs
A sentencing brief is structured as follows:
- Overview
- Identify the charges, including time, place and section of the code.
- Identify the issue for sentencing
- Outline desired result
- Facts
- Summary of undisputed Facts
- Summary of anticipated disputed facts, including what witnesses will be provided
- Enumeration of relevant exhibits
- Positions of Parties
- Principles of Sentencing
- Objectives to be emphasized in Case
- Applicable Factors
- Prior Cases
- Analysis / Discussion of Case
- Ancillary Orders
- Legal Requirements of Order
- Interpretation of Provisions
- Discussion of Application
- Summary of Party's Position
- Breakdown of the requested Sentence, including any factual
Cover of Brief | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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C A N A D A File# ________________ IN THE [LEVEL OF COURT] OF [PROVINCE] BETWEEN: – and –
CROWN/ACCUSED SENTENCING BRIEF | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Table of Contents | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
TABLE OF CONTENTS(e)
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Body of Brief | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[X] On [date], the accused [plead/was found] guilty to the commission of the following offence(s) between [date]. Specifically that he:
The Crown elected to proceed by indictment/summary conviction on the hybrid offences. [X] It is the Crown/Defence position that a fit and proper sentence for the offences charged are as follows:
[X] The terms of the conditional sentence order should be as follows:
[X] The terms of the probation order should be as follows:
[X] The terms of the ancillary orders should be as follows:
[X] The remainder of these written submissions will be organized into the following Parts:
[X] The parties are not in agreement on what the fit and proper sentence would be for this accused, including the appropriate form of disposition, duration of custody, the terms of probation, and ancillary orders. [X] Over the course of the proceedings the parties have negotiated a potential resolution to this matter. There is agreement on particular charges and facts to be admitted. The parties have agreed on what is believed to be a suitable sentence, subject to the Court's approval in an Anthony-Cook hearing. [X] The exercise of sentencing an offender is one of determining a fit and proper sentence for the particular offender. This process requires a high degree of individualizing and tailoring of the sentence to fit the particular accused and recognizes that the process must be flexible. Justice LeBel in R v LM, [2008] 2 SCR 163, 2008 SCC 31 (CanLII) gives some recommendation on the propert approach (para. 17):
A. Purpose and Principles of Sentencing [X] The objective of a sentencing judge, framed most broadly, is to ensure that the sentence order is "just and appropriate". A just and appropriate sentence is one that satisfies the fundamental purposes of a sentence as laid out by the Criminal Code. Section 718 states the fundamental purpose of sentencing as follows:
[X] There will be heightened importance and emphasis on particular objectives for any particular case. No single objective can ever trump another completely. These objectives must be weighed against each other in light of what the court would consider the optimal way to protect the local community (see Nasogaluak). B. Proportionality [X] The principle of proportionality is of such importance that it was codified in s. 718.1 as the fundamental principle to the sentencing process. The section states:
The importance proportionality plays in the sentencing process justified on the basis that at just sentence is necessarily one that is proportionate to the gravity of the offence and the responsibility of the offender. In R v Ipeelee, 2012 SCC 13 (CanLII) at para 37 Justice Lebel explained the role proportionality plays:
C. Parity [X] Section 718.2(b) directs that sentencing judges must ensure that the accused's sentence "be similar to sentences imposed on similar offences committed in similar circumstances;". This is the principle of parity and is usually addressed through consideration of the range of past sentences where similar offenders have committed similar offences in similar circumstances. The Court should also be sensitive to the particular needs of the local community (see Nasogaluak, Lacasse). [X] The purpose behind the principle is to ensure fairness as between similarly situated cases. It does not, however, override the individualized nature of sentencing, nor does it prohibit considerable disparity between accused so long as the sentence ordered in proportionate to the gravity of the offence and moral culpability of the offender. (see MCA) Proportionality should generally prevail over parity (see Lacasse at para 92). D. Restraint [X] The principle of restraint is codified in both s. 718.2(d) and (e), stating that:
[X] The principle ensures that sentences are just and fair in the eyes of the public by imposing upon courts a duty to limit the use of incarceration by ensuring that courts consider the least intrusive sentence that achieves the necessary sentencing objectives and only uses incarceration as an option of last resort. E. Totality and Concurrent vs Consecutive Sentences [assuming multiple offences charged] A. Purpose of Criminalization of Conduct B. Objectives to be Emphasized B. Range of Sentence [X] Generally across Canada, the sentencing range for the offence of ... ranges anywhere between ... [X] The recommended sentence presented here is in light of cases from within the province: [list of cases and short summaries] [X] There are also cases from elsewhere in Canada including the following: [X] The recommended sentence presented here is in light of cases from within the province: [X] Section 718.2 obliges the sentencing judge to increase and decrease a potential sentence on consideration of the enumerated aggravating and mitigating features that go to the gravity of the offence and degree of responsibility of the offender. The section states that:
[X] In particular to this offence, the offence-specific factors found in s. XXX should be considered as well. A. Gravity of Conduct [consider the relationship of trust, the degree of physical or psychological harm] A. Sophistication of the Offence
B. Vulnerability of Victim C. Responsibility and Moral Culpability of the Offender D. Guilty Plea and Acceptance of Responsibility E. Prior Criminal Record and Repeat Offenders F. Prospects of Rehabilitation [X] A joint recommendation that is presented to the Court can only be adopted where the court is satisfied, after hearing all the evidence and submissions, that the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. This "public interest test" was most recently outlined in R v Anthony-Cook, 2016 SCC 43. Justice Moldaver, writing for the Court, outlined the test as follows:
[X] Justice Moldaver described the importance of having a high threshold to reject a joint recommendation:
[X] Under the Anthony-Cook approach to a joint recommendation, an added obligation is placed on both counsel to provide sufficient information about the offence, offender, and circumstances of the proceedings that brought about the agreement:
[X] Should the Court be inclined to reject the joint recommendation, the sentencing judge cannot simply declare the agreement inappropriate and proceed to determine a fit and proper sentence. The Court must provide notice to counsel that there are concerns and invite counsel to make further submissions, invite a potential withdraw of guilty plea, and only after that must give "clear and cogent" reasons for the rejection.
A. Restitution Orders B. Forfeiture Orders C. DNA Orders D. SOIRA Orders Based on the foregoing and as supplemented by oral submissions, the [Crown / defence] beleieve a fit and proper sentence is as follows:
[X] We are also recommending the following ancillary orders: [list the orders requested and their duration] ALL OF WHICH IS RESPECTFULLY SUBMITTED DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.
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Table of Authorities | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
PART X: TABLE OF AUTHORITIES(e)
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