NCJ Number
69408
Date Published
1980
Length
10 pages
Annotation
TACTICS THAT CAN BE UTILIZED IN CANADA BY THE DEFENSE COUNSEL IN REPRESENTING THE RIGHTS OF CLIENTS AT SENTENCING ARE DESCRIBED.
Abstract
THE ROLE OF DEFENSE COUNSEL AT THE TIME OF SENTENCING REMAINS UNCHANGED IN ITS ADVERSARIAL NATURE. CONSIDERATION OF SOCIETAL INTERESTS IS VIEWED AS THE ROLE OF THE PROSECUTOR AND THE JUDGE; THE DEFENSE COUNSEL'S GOAL IS A DISPOSITION MOST FAVORABLE TO THE CLIENT, WITH AN EXCEPTION GRANTED TO THE CHANGE IN THE ROLE OF THE CROWN COUNSEL AT THE TIME OF SENTENCING. A DISPOSITION MOST FAVORABLE TO THE DEFENDANT DOES NOT NECESSARILY MEAN THE LEAST SEVERE SENTENCE, BUT A DISPOSITION THAT MOST SATISFACTORILY MEETS THE CLIENT'S NEEDS. THE PRIMARY CONSIDERATION IN MAKING SUBMISSIONS FOR SENTENCING ALTERNATIVES IS TO EMPHASIZE THAT IMPRISONMENT SHOULD ONLY BE USED AS A LAST RESORT IN VIEW OF THE HIGH PRISON POPULATION IN CANADA. AS AN ALTERNATIVE, THE DEFENSE COUNSEL SHOULD PROPOSE A RESTITUTION ORDER, THE PLAUSIBILITY OF WHICH IS ENHANCED WHEN AN AGREEMENT IS REACHED WITH THE VICTIM FOR RESTITUTION WITHOUT THE IMPETUS OF A COURT ORDER. THE PROPER USE OF DELAYING TACTICS BY THE DEFENSE COUNSEL IS ALSO ADVOCATED IF DELAYING THE RESOLUTION OF A CASE CAN BE AN EFFECTIVE MEANS OF AFFECTING THE SENTENCE (E.G., LENGTHENING THE PERIOD OF TIME THAT A DEFENDANT SHOWS CHANGED CONDUCT). DEFENSE COUNSEL SHOULD ALSO BE AWARE OF THE PROVISIONS OF THE CRIMINAL CODE WHICH ALLOW COUNSEL TO BRING FORWARD PROCEEDINGS 'BEFORE THE EXPIRATION OF THE TIME FOR WHICH THE ACCUSED HAS BEEN REMANDED.' ANOTHER WAY FOR THE DEFENSE COUNSEL TO INFLUENCE SENTENCING IS TO BECOME INVOLVED IN THE PREPARATION OF THE PRESENTENCE REPORT. LASTLY, DEFENSE COUNSEL CAN PREPARE A CASE FOR EARLY RELEASE IF THE DEFENDANT IS SENTENCED TO PRISON, WHICH MIGHT EXPEDITE THE EARLY RELEASE OF THE CLIENT. A TOTAL OF 25 NOTES ARE PROVIDED.