Sentencing Evidence

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General Principles

The admissibility of evidence is significantly different in a sentencing hearings than in trials. The interests at stake differ in a sentencing as opposed to a trial as the presumption of innocence is gone and there is no longer a concern for a wrongful conviction.[1]

In sentencing, courts should be open to a broad range of information in order to achieve the objectives under the Code.[2]

Exclusionary rules of evidence are not to be strictly applied.[3]

Despite relaxed rules, the evidence must still meet the standard of accuracy, credibility and reliability.[4]

The prejudicial effect of the evidence should not outweigh the probative value.[5]

In 1996, Part XXIII was amended to create a statutory framework for sentencing hearings.[6]

The Crown does not have to prove voluntariness of statements made by the accused to render the statement admissible.[7] Generally, admissibility voir dires, such as for voluntariness, may be held at the discretion of the judge but are usually not necessary.[8]

The law of evidence at sentencing equally applies to dangerous and long term offenders.[9]

Submissions of counsel on sentence representing fact are not evidence when the facts in dispute.[10] It is only when the facts are non-contentious that the judge can accept the representation as fact. [11]

  1. R v Angelillo, 2006 SCC 55 (CanLII), [2006] 2 SCR 728 such as at para 30
  2. R v Jones, 1994 CanLII 85 (SCC), [1994] 2 SCR 229 at p.396 ("...both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the ganger posed by the offender.") and at p. 398 ("sentencing judge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at his disposal the broadest possible range of information.")
  3. Campbell at para 29, 31, 32
    R v Boyd, 1983 CanLII 240 (BC CA)
  4. McWilliams' Canadian Criminal Evidence, Fourth Edition at 34:10
    R v Lévesque, 2000 SCC 47 (CanLII), [2000] 2 SCR 487 at para 30
    R v Campbell, 2003 CanLII 49352 (ON SC) at para 31
    Angelillo at para 20
  5. Angelillo at para 32
    R v Edwards, 2001 CanLII 24105 (ON CA) at para 63 Campbell
  6. Angelillo, such as at para 21
  7. R v Lees, 1979 CanLII 43 (SCC), [1979] 2 SCR 749
  8. Campbell at para 9
  9. R v Johnson, 2003 SCC 46 (CanLII), [2003] 2 SCR 357 at para 23
  10. R v Pahl, 2016 BCCA 234 at para 55
    R v Cousins (1981), 22 C.R. (3d) 298 at 301 (Nfld. C.A.)
    R v Gobin (1993), 85 C.C.C. (3d) 481 at 484 (Man. C.A.)
  11. Pahl at para 56

Factual Findings

Section 723 codifies the common law rules on submission of evidence on sentencing.

Submissions on facts
723. (1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.
Submission of evidence
(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.
Production of evidence
(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.
Compel appearance
(4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence.
...
R.S., 1985, c. C-46, s. 723; 1995, c. 22, s. 6.
...
Information accepted
724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.


CCC

On a guilty plea, a judge may rely on facts that are agreed upon by the parties. The Crown will read the facts alleged as well as submit allegations of prior criminal convictions.[1] The Defence must have an opportunity to deny or consent to the allegations.[2]

In practice, at a minimum the crown should read-in enough facts to make out the essential elements of the offence. Preferably there should also be all admitted facts going to aggravating and mitigating factors.

The judge may rely upon any information placed before him. This includes submissions by Crown and Defence counsel as well as admissible evidence.[3]

A guilty plea is only an admission of the essential elements of the offence.[4]

On sentencing, where facts are not in dispute, the judge may makes inferences from proven or undisputed evidence.[5]

At the end of a jury trial facts are determined by the trial judge under s. 724(2) as inferred by the jury verdict.[6]

  1. e.g. R v Bartlett, 2005 NLCA 75 (CanLII)
  2. R v Cataract (1994), 93 CCC 486 (SaskCA)
  3. R v Bartlett 2005 NLCA 75 (CanLII)
  4. R v Gardiner, [1982] 368 SCR 2 1982 CanLII 30 at 330 and 331
  5. R v Ducharme, 2012 MBCA 35 (CanLII) at para 5
  6. See details at Juries#Determined_Facts_After_a_Jury_Trial

Disputed of Facts

Where any part of the relevant facts put to the sentencing judge are in dispute, s. 724 directs how the Court should resolve the issue:

724.
...
Disputed facts
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.


R.S., 1985, c. C-46, s. 724; 1995, c. 22, s. 6.

CCC

Aggravating facts must be proved beyond a reasonable doubt by the Crown.[1]

A "Gardiner Hearing" refers to the hearing of oral evidence that is conducted at sentencing where there is a dispute between the parties as to the facts on a guilty plea.[2]

This hearing is conducted according to s. 724(3). It will concern the “extrinsic evidence” that must be proven by the crown.[3]

Where there is a dispute on facts, the court cannot rely upon the crown's version without supported facts.[4] To settle the conflict the judge must hear evidence to settle the evidence or chose to accept the accused's version "so far as possible".[5] If the difference amounts to a dispute between characterizations, the Defence must call evidence.[6]

A dispute of facts under s. 724(3) is engaged when the "accused denies a Crown submission of fact, which goes to the gravity of the offence or presents a different version of the incident, the sentencing judge is bound to ignore the Crown submission, unless it leads evidence on the disputed fact."[7]

The Crown alleging facts that are disputed by affidavits submitted by defence will engage a dispute of fact.[8]

A claim by the defence that there was an absence of an aggravating factor that the Crown is relying upon will amount to a dispute of fact.[9]

Where there is no explicit admission of a fact, even though the accused declined when given an opportunity to dispute it will not engage a dispute of facts. It is only where the defence explicitly disputes a fact that s. 724 applies.[10]

Facts that are considered "auxiliary" and are not elements of the offence are to be proven only on a standard of balance of probabilities.[11]

Mitigating facts must also be proven on an a standard of balance of probabilities.[12] The absence of facts or evidence cannot permit an presumption for mitigating circumstances.[13]

those auxiliary findings of fact are not subject to the criminal standard of proof, but instead a balance of probabilities standard

  1. R v Larche, 2006 SCC 56 (CanLII), [2006] 2 SCR 762 at paras 43-44 per Fish J
    R v Tomdio-Yiuiti, 2010 SKCA 81 (CanLII) per Lane JA
    R v Malinowski, 2007 SKCA 33 (CanLII) at para 6 per Sherstobitoff JA
    R v Lewis, 2012 NLCA 11 (CanLII) per Wells JA ("an aggravating factor that is disputed is, like an essential element of the offence, required to be proven beyond a reasonable doubt.") R v Gardiner, 1982 CanLII 30 (S.C.C.), [1982] 2 SCR 368 at p. 414-5 per Dickson J
    R v Angelillo 2006 SCC 55 (CanLII), (2006), 214 CCC (3d) 309 (S.C.C.) per Charron J ("the extrinsic evidence is contested, the prosecution must prove it. Since the facts in question will doubtless be aggravating facts, they must be proved beyond a reasonable doubt (s. 724(3)(e)). The court can sentence the offender only for the offence of which he or she has been convicted, and the sentence must be proportionate to the gravity of that offence...")
  2. see Gardiner, supra (the "issue should be resolved by ordinary legal principles governing criminal proceedings")
  3. Angelillo, supra
  4. R v Choice Atlantic Seafoods Inc., 2001 NSSC 161 (CanLII) at para 7 per Stewart J
    R v Pahl, 2016 BCCA 234 (CanLII) at paras 55–56
  5. s. 724(3)(e)
    R v Choice Atlantic Seafoods Inc. at para 7 citing R v Poorman, 1991 CanLII 2759 (SKCA), (1991), 6 C.R. (4th) 364 (Sask. C.A.)
  6. R v Poulin, 1995 CanLII 2368 (BCCA)
  7. R v Leschyshyn, 2007 MBCA 41 (CanLII) para 7 per Chartier JA
    see also R v Larche, 2006 SCC 56 (CanLII) at para 43 per Fish J (a dispute arises “when the accused refuses to recognize the veracity of such facts, or, to put it another way, does not consent to the application of s. 725(1)(c).”)
  8. e.g. Tran, supra
  9. R v BSB, 2010 BCCA 40 (CanLII) per Neilson JA
  10. R v Walkley, 2009 BCCA 87 (CanLII) at para 15, 16 per Ryan JA
  11. R v Redford, 2014 ABCA 336 at para 13
    R v Vader, 2017 ABQB 48 (CanLII) at para 39
  12. R v Holt (1983), 4 CCC (3d) 32 at 51-52 (Ont CA), leave denied [1983] SCCA No 474
    Vader, supra at para 40
  13. Holt, supra at 51 (Aggravating facts are on a standard of BARD. "But that case does not support the reverse proposition - that in the absence of such proof all possible mitigating facts must be assumed in favour of the accused.")

Hearsay

Hearsay is admissible in sentencing under s. 723.

s. 723.
...
Hearsay evidence
(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person

(a) has personal knowledge of the matter;
(b) is reasonably available; and
(c) is a compellable witness.

R.S., 1985, c. C-46, s. 723; 1995, c. 22, s. 6.


CCC

As with all evidence at sentencing, it must be credible and reliable.[1] More specifically, a judge should not accept hearsay evidence at sentence unless it is "credible and trustworthy".[2]

Documentary evidence, such as reports, records, and assessments, may be admitted for the truth of its contents.[3]

An accused should not be permitted to "place disputed mitigating facts or a disputed explanation 'in evidence' by having his or her out-of-court statements retold by others". [4]

The flexible standard may not apply where the Crown wishes to prove aggravating factors which requires proof beyond a reasonable doubt.[5]

  1. R v Francis (2005) CCC (3d) 147 at para 24, 27
    R v JPL, 2006 ABPC 313 (CanLII) at para 5
    R v Janes Family Foods Ltd., 2008 ONCJ 13 (CanLII)
  2. R v Pahl, 2016 BCCA 234 (CanLII) at paras 58 to 60 per Frankel JA
  3. R v McKay, 2004 MBQB 146 (CanLII) at para 4-9 per Duval J
    R v Ellard, 2005 BCSC 1087 (CanLII) at para 22 per Bauman J
  4. Pahl, supra at para 61
  5. R v Piche, 2006 ABCA 220 (CanLII) at para 14-16 per Hunt JA
    Levesque, supra at para 30
    Angelillo, supra at para 20, 21

Relevancy of Extrinsic Facts

Section 736.1 permits the court to consider relevant information put before it.

Relevant information
726.1 In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.
1995, c. 22, s. 6.


CCC

The sentencing judge must exclude any relevant evidence for which the prejudicial value outweighs the probative value to a point of jeopardizing the right to a fair trial[1]

The court may consider evidence of character, reputation, and risk for re-offending.[2]

  1. R v Angelillo, 2006 SCC 55 (CanLII), [2006] 2 SCR 728 at para 32
    Ewards at para 63
  2. Angelillo at paras 22, 28, 29, 31, 60
    R v Edwards, 2001 CanLII 24105 (ON CA) at para.39-42 - character evidence

Evidence of Untried Offences

Evidence of untried offences is generally a form of character evidence and may be admissible.[1]

Factors to consider whether untried conduct is admissible to establish character includes the following:[2]

  1. the nexus between the evidence and the offence for which the offender was convicted—the closer the connection the more likely the evidence will shed light on the circumstances of the charged offence;
  2. the similarity between the evidence and the offence for which the offender was convicted;
  3. the difficulty the offender may encounter in properly defending against the allegations in the proposed evidence;
  4. the danger that the sentence hearing will be unduly prolonged;
  5. the danger that the focus of the sentence hearing will appear to be diverted from the true purpose of imposing a fit sentence for the charged offence that is proportionate to the gravity of the offence and the degree of responsibility of the offender in accordance with s. 718.1;
  6. whether, as in Lees, the offender has adduced evidence of good character; and
  7. the cogency of the proposed evidence.

A court cannot sentence for offices that are not before the court.[3]

  1. R v McCauley, [2007] O.J. No. 1593 (S.C.)
    R v Fouquet, 2005 ABQB 673 (CanLII)
    R v Angelillo, 2006 SCC 55 (CanLII), [2006] 2 SCR 728 - evidence does not have to fall into 725
  2. R v Edwards, 2001 CanLII 24105 (ON CA)
  3. Angelillo

Post-Sentence Evidence

See: Appeals