Sentencing Evidence

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 92774)

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]

Relaxed Rules of Evidence

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]

The law of evidence at sentencing equally applies to dangerous and long term offenders.[6]

Submissions of Counsel

Submissions of counsel on sentence representing fact are not evidence when the facts in dispute.[7] It is only when the facts are non-contentious that the judge can accept the representation as fact. [8]

The Crown does not necessarily have to prove voluntariness of statements made by the accused to render the statement admissible in a sentencing hearing.[9] Generally, admissibility voir dires, such as for voluntariness, may be held at the discretion of the judge but are usually not necessary.[10]

History

In 1996, Part XXIII was amended to create a statutory framework for sentencing hearings.[11]

  1. R v Angelillo, 2006 SCC 55 (CanLII), [2006] 2 SCR 728, per Charron J such as , at para 30
  2. R v Jones, 1994 CanLII 85 (SCC), [1994] 2 SCR 229, per Gonthier J, 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. R v Campbell, 2003 CanLII 49352 (ON SC), 112 CRR (2d) 34, per Hill J, at paras 29, 31, 32
    R v Boyd, 1983 CanLII 240 (BC CA), 8 CCC (3d) 143, per Hinkson JA
    R v Albright, 1987 CanLII 26 (SCC), [1987] 2 SCR 383, per Lamer J, at paras 22 to 23
  4. McWilliams' Canadian Criminal Evidence, Fourth Edition at 34:10
    R v Lévesque, 2000 SCC 47 (CanLII), [2000] 2 SCR 487, per Gonthier J, at para 30
    Campbell, supra, at para 31
    Angelillo, supra, at para 20
  5. Angelillo, supra, at para 32
    R v Edwards, 2001 CanLII 24105 (ON CA), 155 CCC (3d) 473, per Rosenberg JA, at para 63 Campbell, supra
  6. R v Johnson, 2003 SCC 46 (CanLII), [2003] 2 SCR 357, per Iacobucci and Arbour JJ, at para 23
  7. R v Pahl, 2016 BCCA 234 (CanLII), 336 CCC (3d) 221, per Frankel JA, at para 55
    R v Cousins, 1993 CanLII 14652 (MB CA), (1981), 22 CR (3d) 298 at 301 (Nfld. C.A.)
    R v Gobin, 1993 CanLII 14652 (MB CA), 85 CCC (3d) 481, per Huband JA at p. 484 (CCC)
  8. Pahl, supra, at para 56
  9. R v Lees, 1979 CanLII 43 (SCC), [1979] 2 SCR 749, per McIntyre J
  10. Campbell, supra, at para 9
  11. Angelillo, supra such as , at para 21

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.
[omitted (5)]
R.S., 1985, c. C-46, s. 723; 1995, c. 22, s. 6.

CCC (CanLII), (DOJ)


Note up: 723(1), (2), (3), and (4)

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.
[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 724; 1995, c. 22, s. 6.

CCC (CanLII), (DOJ)


Note up: 724(1)

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 make 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), 756 APR 154, per Roberts JA
  2. R v Cataract, 1994 CanLII 4616 (SK CA), 93 CCC 483, per Bayda CJS
  3. R v Bartlett, 2005 NLCA 75 (CanLII), 756 APR 154, per Roberts JA
  4. R v Gardiner, 1982 CanLII 30 (SCC), [1982] 368 SCR 2, per Dickson J, at pp. 330 and 331
  5. R v Ducharme, 2012 MBCA 35 (CanLII), MJ No 143, per Chartier JA, at para 5
  6. See details at Juries#Determined Facts After a Jury Trial

Disputed of Facts

See also: Jury Procedure#Determined Facts After a Jury Trial

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
[omitted (1) and (2)]

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 (CanLII), (DOJ)


Note up: 724(3)

Where facts are in dispute and have not been proven by the Crown, the more favourable facts are to be presumed.[1]

Proof of Aggravating Facts

Aggravating facts must be proved beyond a reasonable doubt by the Crown.[2]

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.[3]

This hearing is conducted according to s. 724(3). It will concern the “extrinsic evidence” that must be proven by the crown.[4]

Where there is a dispute on facts, the court cannot rely upon the crown's version without supported facts.[5] 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."[6] If the difference amounts to a dispute between characterizations, the Defence must call evidence.[7]

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."[8]

The Crown alleging facts that are disputed by affidavits submitted by defence will engage a dispute of fact.[9]

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.[10]

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.[11]

Facts that are considered "auxiliary" and are not elements of the offence are to be proven only on a standard of balance of probabilities.[12]

Mitigating facts must also be proven on an a standard of balance of probabilities.[13] The absence of facts or evidence cannot permit a presumption for mitigating circumstances.[14]

  1. R v Qureshi, 2019 ONSC 162 (CanLII), at para 9, per Quigley J
    R v McDonnell, 1997 CanLII 389 (SCC), [1997] 1 SCR 948, at p. 977(complete citation pending)
  2. R v Larche, 2006 SCC 56 (CanLII), [2006] 2 SCR 762, per Fish J, at paras 43 to 44
    R v Tomdio-Yiuiti, 2010 SKCA 81 (CanLII), 350 Sask R 318, per Lane JA
    R v Malinowski, 2007 SKCA 33 (CanLII), 293 Sask R 172, per Sherstobitoff JA, at para 6
    R v Lewis, 2012 NLCA 11 (CanLII), 989 APR 64, 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 (SCC), [1982] 2 SCR 368, per Dickson J, at pp. 414-5
    R v Angelillo, 2006 SCC 55 (CanLII), [2006] 2 SCR 728, 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...")
  3. see Gardiner, supra (the "issue should be resolved by ordinary legal principles governing criminal proceedings")
  4. Angelillo, supra
  5. R v Choice Atlantic Seafoods Inc, 2001 NSSC 161 (CanLII), 621 APR 187, per Stewart J, at para 7
    R v Pahl, 2016 BCCA 234 (CanLII), 336 CCC (3d) 221, per Frankel JA, at paras 55 to 56
  6. s. 724(3)(e)
    Choice Atlantic Seafoods Inc, supra, at para 7 citing R v Poorman, 1991 CanLII 2759 (SKCA), 6 CR (4th) 364 (Sask CA), per Vancise JA
  7. R v Poulin, 1995 CanLII 2368 (BC CA), 26 WCB (2d) 310, per Southin JA
  8. R v Leschyshyn, 2007 MBCA 41 (CanLII), 214 Man R (2d) 2, per Chartier JA, at para 7
    see also R v Larche, 2006 SCC 56 (CanLII), [2006] 2 SCR 762, per Fish J, at para 43 (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).”)
  9. e.g. Tran, supra
  10. R v BSB, 2010 BCCA 40 (CanLII), 282 BCAC 136, per Neilson JA
  11. R v Walkley, 2009 BCCA 87 (CanLII), 269 BCAC 9, per Ryan JA, at paras 15, 16
  12. R v Redford, 2014 ABCA 336 (CanLII), 319 CCC (3d) 170, per Paperny JA, at para 13
    R v Vader, 2017 ABQB 48 (CanLII), per Thomas J, at para 39
  13. R v Holt, 1983 CanLII 3521 (ON CA), 4 CCC (3d) 32 at 51-52 (Ont CA), per Whealy J leave denied [1983] SCCA No 474
    Vader, supra, at para 40
  14. 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

See also: Hearsay

Hearsay is admissible in sentencing under s. 723.

723
[omitted (1), (2), (3) and (4)]

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 (CanLII), (DOJ)


Note up: 723(5)

Standard of Proof

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]

Records

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

Prior Accused Statements

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]

Aggravating Factors

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

Mitigating Factors

Mitigating facts must be proven on a balance of probabilities.[6]

Expert Reports

There is no obligation that the court must accept or put any weight on an expert report where the judge finds reason to be dissatisfied with the conclusions drawn.[7]

  1. R v Francis, 2005 CanLII 24259 (ONSC), 202 CCC (3d) 147, per Ratushny J, at paras 24, 27
    R v JPL, 2006 ABPC 313 (CanLII), per Lamoureux J, at para 5
    R v Janes Family Foods Ltd., 2008 ONCJ 13 (CanLII), per Lampkin J
  2. R v Pahl, 2016 BCCA 234 (CanLII), 336 CCC (3d) 221, per Frankel JA, at paras 58 to 60
    R v Albright, 1987 CanLII 26 (SCC), [1987] 2 SCR 383, 37 CCC (3d) 105, per Lamer J at 111 (CCC)(complete citation pending)
  3. R v McKay, 2004 MBQB 146 (CanLII), 1 WWR 732, per Duval J, at paras 4 to 9
    R v Ellard, 2005 BCSC 1087 (CanLII), BCTC 1087, per Bauman J, at para 22
  4. Pahl, supra, at para 61
  5. R v Piche, 2006 ABCA 220 (CanLII), 210 CCC (3d) 459, per Hunt JA, at paras 14 to 16
    R v Lévesque, 2000 SCC 47 (CanLII), [2000] 2 SCR 487, per Gonthier J, at para 30
    Angelillo, supra, at paras 20, 21
  6. Albright, supra at 111
    Pahl, supra
    R v Kunicki, 2014 MBCA 22 (CanLII), 307 CCC (3d) 233, per Cameron JA at 240-243 (CCC)
    R v Nguyen, 2012 ONCA 534 (CanLII), per curiam
    R v VW, 2008 ONCA 55 (CanLII), 229 CCC (3d) 344, per Sharpe JA
  7. R v SCW, 2019 BCCA 405 (CanLII), per Goepel JA, at para 23

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 (CanLII), (DOJ)


Note up: 726.1

It is generally accept that the sentencing judge should have about as "as much information as possible about [the offender]"./[1]

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[2]

The court may consider evidence of character, reputation, and risk for re-offending.[3]

  1. R v Watts, 2022 NBCA 34 (CanLII), per French JA, at para 60
  2. R v Angelillo, 2006 SCC 55 (CanLII), [2006] 2 SCR 728, per Charron JA, at para 32
    R v Edwards, 2001 CanLII 24105 (ON CA), 155 CCC (3d) 473, per Rosenberg JA (3:0) , at para 63
  3. Angelillo, supra, at paras 22, 28, 29, 31, 60
    Edwards, supra, at paras 39 to 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] OJ No 1593 (S.C.)(*no CanLII links)
    R v Fouquet, 2005 ABQB 673 (CanLII), 66 WCB (2d) 690, per Slatter J
    R v Angelillo, 2006 SCC 55 (CanLII), [2006] 2 SCR 728, per Charron J - evidence does not have to fall into 725
  2. R v Edwards, 2001 CanLII 24105 (ON CA), 155 CCC (3d) 473, per Rosenberg JA
  3. Angelillo, supra

Post-Sentence Evidence

See: Appeals

See Also