Effect of Criminal Records in Sentencing

From Criminal Law Notebook

General Principles

See also: Sentencing Factors Relating to the Offender

A criminal record will be an aggravating factor in sentencing.[1] It's absence is not a mitigating but is simply neutral.[2]

The criminal record can show that the offender is a "scofflaw", is not rehabilitated or has not "learned from past mistakes."[3]

An offender who has demonstrated an exemplary life since a prior offence and demonstrates remorse may be considered for a reduced sentence and reduce the need for specific deterrence.[4]

It is an error in principle to determine a sentence based only on the sentence from a previous conviction.[5] It is a "relevant consideration" but the sentence must be driven by the facts of the case.[6] It is relevant to whether "the offence is uncharacteristic for the offender...whether the offender demonstrates a continuing attitude of disobedience of the law."[7]

A person who has received a discharge can still be considered a "first time offender."[8]

Over-weighing Criminal Record

The record "should not be given so much weight such that it becomes more influential than the circumstances of the offence."[9]

It is important that the prior criminal record not be over-emphasized such that it amounts "to a re-sentencing of the accused for the previous offence(s)."[10]

This is largely codified in s. 725:

Other offences

725 (1) In determining the sentence, a court

(a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;
(b) shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;
(b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:
(i) the Attorney General and the offender consent,
(ii) the court has jurisdiction to try each charge,
(iii) each charge has been described in open court,
(iv) the offender has agreed with the facts asserted in the description of each charge, and
(v) the offender has acknowledged having committed the offence described in each charge; and
(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.
Attorney General’s consent

(1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.

No further proceedings

(2) The court shall, on the information or indictment, note

(a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and
(b) any facts considered in determining the sentence under paragraph (1)(c),

and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal.

R.S., 1985, c. C-46, s. 725; R.S., 1985, c. 27 (1st Supp.), s. 158, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 6; 1999, c. 5, s. 31.

An offence committed while on parole is an aggravating factor. By contrast the added consequences of parole revocation should not be mitigating.[11]

Timing of Prior Record

A criminal record can only be considered where the offender had one at the time of the index offence (this is known as the Coke Rule).[12]

However, when a judge sentences for a convicted offence, the judge may take into consideration other criminal acts, and in a limited fashion, such as offences admitted in an agreed statement facts or pending charges.[13]

  1. R v Squires, 2012 NLCA 20 (CanLII), 289 CCC (3d) 429, per Welsh JA (2:1), (a criminal record "will be viewed as an aggravating factor leading to a more serious punishment rather than as a factor that tends to limit or lessen punishment.")
  2. R v Lau, 2004 ABCA 408 (CanLII), 193 CCC (3d) 51, per Hunt JA, at para 29
    R v Felix, 2019 ABCA 458 (CanLII), per Antonio JA, at para 45 ("The starting point established herein presumes an offender who has no criminal record and is of prior good character, and who has been found guilty after trial.")
    R v JJM, 2021 ABCA 170 (CanLII), per curiam
    contra R v RM, 2019 BCCA 409 (CanLII), per Fenlon JA at paras 20 to 25
  3. R v Barrett, 2012 NLCA 46 (CanLII), 291 CCC (3d) 213, per Hoegg JA (3:0), at para 35 (a “criminal record is often quite relevant on sentencing in that it may show the offender to be a scofflaw, or lead to an inference that he or she has not been rehabilitated or otherwise learned from past mistakes.”)
  4. R v RA, 1994 CanLII 4524 (MB CA), 88 CCC (3d) 184, per Twaddle JA
    R v Garnet Lee Cole, 2013 NBPC 9 (CanLII), per Brien J, at para 34
  5. Squires, supra, at para 55
  6. Squires, supra, at para 55
  7. R v Presgrave, [2014] QCCA 105(*no CanLII links) , at para 32
  8. R v Barclay, 2018 ONCA 114 (CanLII), 44 CR (7th) 134, per Hoy ACJ, at paras 44, 49
  9. Presgrave, ibid., at para 32
  10. R v Moller, 2012 ABCA 381 (CanLII), 539 AR 300, per curiam (3:0) , at para 11
  11. R v Lavallee, 2006 ABCA 324 (CanLII), 214 CCC (3d) 223, per Costigan JA (3:0)
  12. R v Andrade, 2010 NBCA 62 (CanLII), 260 CCC (3d) 353, per Robertson JA (3:0)
    see also R v Garcia and Silva, 1969 CanLII 450 (ON CA), [1970] 1 OR 821 at 823, [1970] 3 CCC 124 (CA), per Gale ACJ (3:0)
  13. Garcia and Silva, supra
    see also R v Edwards, 2001 CanLII 24105 (ON CA), OR (3d) 737, per Rosenberg JA (3:0)

Coke Rule

The "coke rule" states that a harsher penalty for a subsequent offence cannot be imposed unless the previous conviction was already recorded at the time of the commission of the subsequent offence. [1]

  1. eg. Andrade v R, 2010 NBCA 62 (CanLII), 260 CCC (3d) 353, per Robertson JA (3:0), at para 2

First Time Offenders

The first sentence for an offender should be "tailored to the individual circumstances of the individual circumstances of the accused rather than solely for the purpose of general deterrence."[1]

Whether to Impose Custodial Sentence on First-time Offenders

When considering sentence for a first-time offender, incarceration should only be imposed when the gravity of the offence requires it.[2]

  1. R v JH, 1999 CanLII 3710 (ON CA), 135 CCC (3d) 338, per Rosenberg JA (3:0), at para 22
  2. R v Stein, 1974 CanLII 1615 (ON CA), 15 CCC (2d) 376 (ONCA), per Martin JA (3:0)
    R v Gaetz, 1992 CanLII 2509 (NS CA), 77 CCC (3d) 445, per Chipman JA (2:1)

Uncharged Offences

Section 725(1)(c) permits the court "may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge".

This provision is the only exception to the rule that offenders are only punished "in respect of crimes for which they have been specifically charged and of which they have been validity convicted."[1]

There must be a connection between the offence before the court and the uncharged conduct.[2]

"Forming part of the circumstances of the offence"

Whether uncharged conduct is part of the circumstances of the offences is determined "on a case-by-case basis."[3]

Where the conduct does not "form part of the circumstances of the offence", it may still nonetheless be relevant should it "form part of the circumstances of the offender."[4]

  1. R v Larche, 2006 SCC 56 (CanLII), [2006] 2 SCR 762, per Fish J (7:0), at paras 1 and 2
  2. Larche, ibid., at para 48
  3. Larche, ibid., at para 50
  4. R v Angelilo, 2006 SCC 55 (CanLII), 214 CCC (3d) 309, per Charron J, at para 31

See Also