The Criminal Code of Canada sets out what types of punishments a Judge may impose for a particular crime. The more serious the crime, the more limited the options are with respect to punishment.
When Defence counsel is trying to decide what sentence to recommend to a Judge on behalf of a client, he or she must first consider what punishments the Judge is legally authorized to order.
Knowing what punishments are legally possible, counsel must then provide the client with an opinion as to what sentencing recommendation may be realistically supported given the unique attributes of his or her case. Counsel’s decision will be informed by many factors, including the particular circumstances of the offence, the offender and the range of sentences imposed in similar cases.
Counsel must sometimes explain to a client that just because you can ask for a particular sentence doesn’t mean that it is tactically wise to do.
By making an outlandish recommendation on sentence counsel risks undermining his or her opportunity to exert meaningful influence on behalf of the client during the sentencing process.
This is not about playing it safe. It is about using your professional judgment to find the edge of what is possible and then laying the necessary evidentiary foundation that will allow the Judge to go along with your position.