Aggravating and Mitigating Factors

From Criminal Law Notebook
This page was last substantively updated or reviewed November 2020. (Rev. # 84077)

General Principles

Section 718.2 provides a non-exhaustive list of secondary principles and objectives in sentencing.[1] This list includes a list of aggravating and mitigating circumstances:

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 intimate partner or a member of the victim or the offender’s family,
(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,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(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 [conditional sentence orders] or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;

[omitted (b), (c), (d) and (e)]
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4; 2019, c. 25, s. 293; 2021, c. 27, s. 5.
[annotation(s) added]


Note up: 718.2

Take note that certain offences have their own additional factors to consider that are found throughout the Code. For example, fraud offences under s. 380.1.[2]

Abused a Person Under 18

There is a division in the caselaw of whether s. 718.2(a)(ii.1) applies to possession of child pornography.[3]

There is also suggestion that it does not apply to luring, even if the young person at issue is a real person.[4]

Absence of Aggravation Does Not Equate to Mitigation and Vice Versa

It is an error of law for a judge to find that the absence of a recognized aggravating factor can be used to mitigate sentence.[5] Thus, it cannot be used as a reason to deviate from a starting point for sentence or consider a sentence on the bottom end of the range of penalties.[6]

Similarly, the absence of mitigation cannot then be used as aggravation warranting a sentence in the upper range of penalty.[7]

Appellate Review

It is an error of law to "over-emphasize" a single factor over all other factors.[8]

The weighing of factors will be an error in principle if the judge exercises his "discretion unreasonably" in emphasizing or minimizing a factor.[9]

  1. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 40
  2. see Sentencing Fraud
  3. R v Pantherbone, 2018 ABPC 142 (CanLII), per LeGrandeur J - does not apply
    R v Harrison, 2016 ABPC 112 (CanLII), per Redman J - does not apply
    R v Downing, 2018 ABPC 257 (CanLII), 150 WCB (2d) 316, per Collinson J - does apply
    R v Prince, 2018 BCSC 987 (CanLII), per Ker J - does apply
    R v Zhang, 2018 ONCJ 646 (CanLII), per Bentley J - does apply
    see also Child Pornography Sentencing
  4. Pantherbone, supra
    R v Randall, 2018 ONCJ 470 (CanLII), per Wakefield J (does not apply to undercover officer)
    Child Luring (Offence)
  5. R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at paras 19 to 25
  6. SJB, ibid., at para 19
    R v Alcantara, 2017 ABCA 56 (CanLII), 353 CCC (3d) 254, per curiam, at para 69
    R v BM, 2008 ONCA 645 (CanLII), 81 WCB (2d) 410, per curiam, at para 7
    R v Barrett, 2013 QCCA 1351 (CanLII), per curiam, at paras 24 to 25
  7. SJB, ibid., at para 19
    Alcantara, supra, at para 69
  8. R v , 1frb9, 1996 CanLII 230 (SCC), per Lamer CJ, at para 90
    R v WE, 2010 NLCA 4 (CanLII), 251 CCC (3d) 213, per Rowe JA, at para 26
  9. R v Friesen, 2020 SCC 9 (CanLII), 391 CCC (3d) 309, per Wagner CJ and Rowe J, at para 26 ("Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably”")

Factors of Offender and Offence

Prohibited Factors

It is generally considered improper to consider factors such as:

  • comments of the public or media
  • past acquittal or pardons
  • conduct of defence counsel and manner in which the defence was conducted[1]
  • absent a charge for perjury, whether the accused was being honest in the trial proceedings[2]
  • character of the victim or other parties
  • risk of harm while incarcerated
  • costs associated with incarceration[3]
Public Attitudes

The court must at all times be a model of "serene, impartial and exemplary justice." It must keep in mind the perception of the administration of justice by "a reasonable, fair-minded and well-informed member of the public, who is fully knowledgeable about the facts of the case and the applicable legal and constitutional principles". The court should not "react to public clamour or hysteria" or the "visceral and negative reaction to crime and criminals."[4]

  1. R v Bradley, 2008 ONCA 179 (CanLII), [2008] OJ No 955, per curiam, at paras 15 to 17
  2. R v Charania, 2014 ONSC 1695 (CanLII), per AJ Goodman JA, at paras 15 to 21
  3. R v Hynes, 2016 NLCA 34 (CanLII), 380 Nfld & PEIR 6, per Welsh JA, at paras 36 to 37
  4. R v Ellis, 2013 ONSC 908 (CanLII), per Campbell J, at para 16 - in context of bail revocation application