By: Charles C Conroy

When an adult has been found guilty of a criminal offence, there are several options for the judge who is considering an appropriate sentence.

How these options are applied depends upon the type of offence, the circumstances of the offence and those of the offender.

  1. A discharge: The judge can "discharge" the accused of an offence, following a finding of guilty, but there is no conviction registered.
  2. A judge has the option of imposing a conditional discharge, with specific conditions to address the accused’s conduct or an absolute discharge, without any conditions at all.

    A discharge would be important for these accused who may lose employment as a result of a conviction, or who must travel across international borders.

  3. A term of probation: The court can suspend the passing of sentence and order that the accused be placed on probation for a specified period of time.
  4. The probation order will contain terms for the accused to follow, such as reporting to a probation officer, or performing community service hours.

    The judge is given wide discretion as to what the offender is to do (or not to do) under a probation order.

    Breaching the order of probation may result in the offender being charged with another criminal offence, and the offender may be returned to the judge who imposed the probation order. That judge can then revoke the suspension of sentence and impose another penalty.

  5. Specialized orders: The Criminal code provides for a number of special orders which a judge can make, and which stand alone, including those orders that prohibit an accused from operating a motor vehicle or possessing a firearm, or requiring the accused to make restitution to the victim of an offence.
  6. Fines: The penalty for committing a criminal offence may be financial.

    Recent changes in the law require such fines to be payable under an order of the judge.

    Consequences of non-payment can include a civil judgement against the accused or a jail term.

    By law the judge cannot impose a fine unless he or she is satisfied that the accused has the means to pay the fine.
  7. Jail: There are three specific variations of a term of imprisonment, which permit the judge some flexibility to address the concerns of the accused and the community. They are an intermittent sentence, a temporary absence program and a conditional sentence.

    Intermittent sentence: if the sentence imposed is 90 days or less, the trial judge may order that the jail term be served in blocks of time, such as on weekends, which permits the offender to be released into the community for a specific purpose such as a job, caring for a child or for health concerns.

    An intermittent sentence must be accompanied by a probation order which governs the offender’s conduct while outside the jail. There are mandatory conditions which must be in that probation order.

    Temporary absence program: similar to an intermittent sentence, an accused can be permitted limited release from custody for good reason. This program is co-ordinated by the institution where the sentence is being imposed.

    Although a judge cannot order temporary absence, and therefore is not a part of the actual sentence, the judge can make a recommendation for this program, which may assist the offender when applying for temporary release.

    Conditional sentence: One of the most unusual developments in criminal law has been the introduction of the conditional sentence.

    The theory is that the community acts as the jailer, but without the expense and disruption of an actual term in jail.

    The sentencing judge imposes a period of custody, but then allows the accused to serve the sentence in the community.

    The accused must reside at a specific location, usually the residence of the offender, under a detailed order. The terms of conditional orders tend to be lengthy and restrictive. Like a probation order, the failure of the accused to follow the terms of the order can be severe, and result in his or her actual incarceration.

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