Law 205: criminal law full Year can (2005-2006) Jennifer Lau

1. 
   Background factors of offender: Are there unique circumstances which have brought this aboriginal offender before the court?
   
   1. 
      Factors such as discrimination, institutionalization, racism, unemployment, poverty, etc may have increased the likelihood that this offender offending. s.718.2(e) forces society to come to terms with its role in bringing this offender before the court. Multiple negative societally-induced background factors will decrease the weight placed on denunciation and deterrence.
      
2. 
   Offender's particular aboriginal cultural background: Are there unique cultural sentencing practices which may be utilized to prevent recidivism?
   
   1. 
      Restorative Justice: Focuses on restoring society by respectfully bringing the offender back into the community to be educated about the impact of the offence on the victim (differs from traditional values of denunciation/separation)
      

1. 
   Specific sentencing options will depend on the particular aboriginal heritage and traditions of the offender.
   
   1. 
      What is the understanding of criminal sanctions held by the community?
      
   2. 
      What is the relationship b/t the offender and his community?
      
   3. 
      Would imprisonment effectively deter the offender from reoffending?
      

Prior to 1996 Criminal Code amendments, an offender could receive either a custodial sentence (jail) or a non-custodial sentence (discharges, suspended sentences, probation, etc). The conditional sentence is a new sentencing tool which is a jail sentence served in the community.

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  If the offender breaches the conditions of their CSO, they can be incarcerated
  
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  Normally imposed for serious offences where CSO would be more beneficial to accused than incarceration
  
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  CSOs therefore allow offender to keep working, continue caring for family, go to school, etc
  

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  No CSOs if minimum sentence: CSOs cannot be given for offences with minimum sentence
  
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  Less-than-2-years: CSO only allowed if sentence imposed is not greater than 2 years
  
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  Requirements: Court must be satisfied that CSO would (1) not endanger the safety of the community and (2) would be appropriate for the offender
  
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  Applicable Crimes: CSO may be imposed for violent crime, if there are no concerns about the offender being a danger to the community (Proulx). Serious crimes with mitigating factors may merit a CSO (i.e. manslaughter with clearly no intent to kill, and no previous criminal history). Likewise, less serious crimes with aggravating factors may not merit a CSO (i.e. aggravated assault that doesn't result in death, but offender has long criminal record)
  
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  s.742.3(1): Mandatory conditions to be imposed for CSO
  
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  s.742.3(2): Optional conditions to be imposed for CSO
  
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    Restrictive CSO conditions should be the norm, not the exception (Proulx): Conditions should be (1) punitive and (2) a restriction on the offender's liberty
    
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    Conditions should be imposed in accordance with circumstances of the offence: i.e. if alcoholism led to the offence, then require alcohol counselling
    

1. 
   Should the offender be incarcerated?
   

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  If yes, then move to step #2: consider offender's record
  
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  If no, then grant a non-custodial sentence
  

2. 
   Consider the offender's record:
   

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  If offender merits a jail term of more than 2 years: CSO is out of question
  
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  If offender merits jail term of less than 2 years: CSO can still be considered
  

3. 
   Is the offender a danger to the community? Would it be appropriate for offender to serve sentence in community?
   

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  Two-part test (Proulx):
  

1. 
   What is the risk of the offender re-offending?
   
2. 
   What is the gravity of damage in the event of recidivism?
   

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  If yes, then CSO can be granted
  
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  If no, then custodial jail sentence must be imposed