Sentencing Brief (Generic)

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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
C A N A D A File# ________________ PROVINCE OF [PROVINCE] COUNTY OF [COUNTY] IN THE [LEVEL OF COURT] OF [PROVINCE] ([name] Region) BETWEEN: HIS MAJESTY THE KING – and – [ACCUSED NAME] CROWN/ACCUSED SENTENCING BRIEF [first party name] [first party title] [address] [address] [address] [address] Tel: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: xxx@xxxxxx Counsel for His Majesty the King [second party name] [second party title] [address] [address] [address] [address] Tel: (xxx) xxx-xxxx Fax: (xxx) xxx-xxxx Email: xxx@xxxxx Counsel for the Accused
Table of Contents
TABLE OF CONTENTS(e) Page PART I: OVERVIEW X A. X i. X PART II: AGREED FACTS AND OTHER EVIDENCE X PART III: POSITIONS OF THE PARTIES X PART IV: GENERAL SENTENCING PRINCIPLES X PART V: OBJECTIVES OF SENTENCING IN THIS CASE X PART VI: AGGRAVATING AND MITIGATING FACTORS IN THIS CASE X PART VI-A: JOINT RECOMMENDATIONS X PART VI-B: AVAILABLE DISPOSITIONS X PART VII: DISCUSSION ON APPROPRIATE SENTENCE X PART VIII: ANCILLARY ORDERS X PART IX: CONCLUSIONS X PART X: TABLE OF AUTHORITIES X
Body of Brief
PART I: OVERVIEW [X] On [date], the accused [plead/was found] guilty to the commission of the following offence(s) between [date]. Specifically that he: (1) ... did commit the offence ... contrary to s. ... of the Criminal Code. (2) ... did commit the offence of ... contrary to s. ... of the Criminal Code. 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: Count # Section Offence Name Date Range Min. Penalty Max. Penalty Sentence Requested (Consecutive or Concurrent) Ancillary Order(s) 1 2 Global Sentence [total duration] Global Sentence Factoring in Totality [total duration] [X] The terms of the conditional sentence order should be as follows: Statutory conditions required by the Code. [list of terms and conditions] [X] The terms of the probation order should be as follows: Statutory conditions required by the Code. [list of terms and conditions] [X] The terms of the ancillary orders should be as follows: [list optional terms, including duration of ancillary orders] [X] The remainder of these written submissions will be organized into the following Parts: [list the Parts] PART II: AGREED FACTS AND OTHER EVIDENCE PART III: POSITIONS OF THE PARTIES [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. OR [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. PART IV: GENERAL SENTENCING PRINCIPLES [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): [17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46 (CanLII), at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 (CanLII), at para. 82). To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C.) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C.). 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: Purpose 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6 [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: Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6. 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: [37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. 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: 718.2... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 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. [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] PART V: OBJECTIVES OF SENTENCING IN THIS CASE 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: PART VI: AGGRAVATING AND MITIGATING FACTORS IN THIS CASE [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: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (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, (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, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (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, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (v) evidence that the offence was a terrorism offence, or (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; ... 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. A. Gravity of Conduct [consider the relationship of trust, the degree of physical or psychological harm] A. Sophistication of the Offence [X] The offence(s) in this case were [planned and continuous/spontaneous and impulsive]. ... 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 PART VI-A: JOINT RECOMMENDATIONS [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: [32] Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. ... [33] In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”. And, as stated by the same court in R. v. B.O.2, 2010 NLCA 19, at para. 56 (CanLII), when assessing a joint submission, trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts”. [34] In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason, as I shall explain. [X] Justice Moldaver described the importance of having a high threshold to reject a joint recommendation: [41] But as I have said, for joint submissions to be possible, the parties must have a high degree of confidence that they will be accepted. Too much doubt and the parties may choose instead to accept the risks of a trial or a contested sentencing hearing. The accused in particular will be reluctant to forgo a trial with its attendant safeguards, including the crucial ability to test the strength of the Crown’s case, if joint submissions come to be seen as an insufficiently certain alternative. [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: [53] Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown’s case, a very lenient sentence might not be contrary to the public interest. On the other hand, if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system. ... [55] This is not to say that counsel must inform the trial judge of “their negotiating positions or the substance of their discussions leading to the agreement” (R. v. Tkachuk, 2001 ABCA 243 (CanLII), 293 A.R. 171, at para. 34). But counsel must be able to inform the trial judge why the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. If they do not, they run the risk that the trial judge will reject the joint submission. ... [57] A thorough justification of the joint submission also has an important public perception component. Unless counsel put the considerations underlying the joint submission on the record, “though justice may be done, it may not have the appearance of being done; the public may suspect, rightly or wrongly, that an impropriety has occurred” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at p. 73). [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. [58] Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, “fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the . . . judge’s concerns before the sentence is imposed” (G.W.C., at para. 26). The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case. [60] Finally, trial judges who remain unsatisfied by counsel’s submissions should provide clear and cogent reasons for departing from the joint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable, and may assist them in the resolution of future cases. Reasons will also facilitate appellate review. PART VII: DISCUSSION ON APPROPRIATE SENTENCE PART VIII: ANCILLARY ORDERS A. Restitution Orders B. Forfeiture Orders C. DNA Orders D. SOIRA Orders PART IX: CONCLUSIONS Based on the foregoing and as supplemented by oral submissions, the [Crown / defence] beleieve a fit and proper sentence is as follows: Count # Section Offence Name Date Range Min. Penalty Max. Penalty Sentence Requested (Consecutive or Concurrent) Ancillary Order(s) 1 2 Global Sentence [total duration] Global Sentence Factoring in Totality [total duration] [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___. _________________________________ [Counsel's name] [Counsel's title]
Table of Authorities
PART X: TABLE OF AUTHORITIES(e) EXHIBITS TAB ... X ... X CASE LAW TAB R v ... X R v ... X LEGISLATION: TAB ... X ... X SECONDARY SOURCES: TAB ... X ... X WEBSITES: TAB ... X ... X