Sentencing Factors Relating to the Criminal Proceedings

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 96009)

General Principles

See also: Sentencing Factors Relating to the Offender and Sentencing Factors Relating to the Offence

Guilty Plea

A guilty plea is a major mitigating factor.[1]

Reasons for Mitigation

A guilty plea is a mitigating factor in a number of respects:

  • it is evidence of remorse [2],
  • it is a sign of greater chance at rehabilitation.[3]
  • it saves the justice system resources where a trial is not needed[4]
  • it excuses victims from the stress of having to testify and reliving the horrors of the events;[5]
  • it spares victims and their family from the uncertainty of a trial.[6]

Frequently a guilty plea is a product of negotiations with the Crown where another charge may be withdrawn or a lighter recommendation will be made in exchange for the guilty plea.[7]

Not Guaranteed Mitigation

The offender is not entitled to a sentence reduction simply for pleading guilty but rather it is within the discretion of the judge to account for a guilty plea in sentencing.

It does not require a "set standard of mitigation."[8] The effect on sentence will vary depending on the circumstances.[9]

Mitigation Not Fixed Amount

The amount of credit given for a guilty plea it not fixed as it can mitigate in several different ways. It has been suggested however that it can often lead to a reduction of sentence by one-third.[10]

Inevitable Conviction

The sentencing judge can consider whether the guilty plea was simply "a recognition of the inevitable" as revealed by the absence of a defence to the charges or compelling and uncontradicted evidence.[11]

Testimony at Sentencing

Where the victim still is forced to testify at the sentencing, the mitigation should not be based on conservation of judicial resources or giving a degree of finality to the complainant.[12]

Mitigation is not attenuated simply because the victim had to testify at the sentencing and it does not change that there was as acceptance of responsibility and the value of demonstrated remorse.[13]

The value of guilty plea does not require admission of aggravating factors. It is assessed on the facts of the case.[14]

Offer of Lesser Plea

The mere offer to plead to a lesser included offence does not amount to a factor of mitigation.[15]

Timing of Plea

The timing of a guilty plea is important. An early guilty plea generally deserves "considerable weight" in sentencing.[16] It may entitle the accused to "substantial credit" in sentence.[17]

A guilty plea during trial may still deserve mitigation on sentence.[18]

Lack of Guilty Plea Not Aggravating

A lack of guilty plea is not an aggravating factor. However, related to a lack of a guilty plea, if the accused was convicted after trial where testimony of the accused was determined to be false, the judge may consider that as aggravating.[19]

  1. ↑ R v Holder, 1998 CanLII 14962 (ONSC), 21 CR (5th) 277 (Ont. SCJ), per Hill J at 281-2
    R v Beier, 1995 CanLII 681 (ON CA), [1995] OJ No 2552 (CA), per curiam, at para 2
    R v Sawchyn, 1981 ABCA 173 (CanLII), 60 CCC (2d) 200, per Laycraft JA at 210
  2. ↑ R v Gardiner, 1982 CanLII 30 (SCC), [1982] 2 SCR 368, per Dickson J (4:3)
    R v Fegan, 1993 CanLII 8607 (ON CA), 80 CCC (3d) 356, per Finlayson JA (3:0) at 360–61, 13 OR (3d) 88
    R v Ticne, 2009 BCCA 191 (CanLII), 269 BCAC 308, per Mackenzie JA (2:1), at para 23 (“In MacMillan Bloedel v Brown (1994), ... , Chief Justice McEachern, in recognizing that a guilty plea will generally be deserving of some credit, noted that such a plea not only obviates the need for a trial, but also saves the public the expense associated with taking a matter to trial: at 165, 166. It has also been recognized that a guilty plea can be indicative of remorse, and of the fact that the offender takes responsibility for his or her actions”)
    R v Wisniewski, (1975) 29 CRNS 342 (Ont.)(*no CanLII links)
  3. ↑ Holder, supra
    R v Randhawa, 2007 BCCA 598 (CanLII), 249 BCAC 87, per Hall JA, at para 7
  4. ↑ R v Johnson and Tremayne, [1970] 4 CCC 64(*no CanLII links) , per Gale CJ at 67
    Randhawa, ibid., at para 7
    Ticne, supra, at para 23
  5. ↑ R v Faulds et al., et al., 1994 CanLII 770 (ON CA), 20 OR (3d) 13, per curiam (3:0), at p. 17
    R v Santos (J.), 67 OAC 270 (CA)(*no CanLII links) at 270-271
    Randhawa, supra, at para 7
  6. ↑ Randhawa, supra, at para 7
    Ticne, supra, at para 23
  7. ↑ R v Roberts, 1998 CanLII 2643 (ON CA), [1998] OJ No 461 (CA), per curiam, at para 6
  8. ↑ R v FHL, 2018 ONCA 83 (CanLII), 360 CCC (3d) 189, per Epstein JA (3:0), at para 22
  9. ↑ Holder, supra
    Faulds, supra at 14 and 17 ("[t]he effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable")
    R v Lake, 2008 ABCA 204 (CanLII), 429 AR 398, per Watson JA, at para 12 (“its significance as [a mitigating] factor is variable”)
    R v Carreira, 2015 ONCA 639 (CanLII), 337 OAC 396, per Epstein JA, at para 15
  10. ↑ R v Conlon, 2011 ABPC 259 (CanLII), 517 AR 365, per Daniel J
  11. ↑ FHL, supra, at paras 22 to 23
  12. ↑ FHL, supra, at para 23 ("the appellant chose to test the Crown’s evidence relating to the more aggravating aspects of his case. As a result, [the victim] was made to relive the assaults in her testimony and to undergo cross-examination designed to impugn her credibility. The guilty plea, therefore, did not conserve judicial resources or provide a degree of finality to the complainant.")
  13. ↑ R v Alcorn 2021 NSC 75 at para 38(complete citation pending)
  14. ↑ Alcorn, ibid. at para 38
  15. ↑ R v Shyback, 2018 ABCA 331 (CanLII), per curiam, at para 26 (“the law is clear that it is not mitigating for an accused to offer to plead guilty to a lesser included offence if the accused is ultimately convicted of the offence as charged. So, for example, an offer by an accused charged with second degree murder to plead guilty to manslaughter is not mitigating if the accused is subsequently convicted of second degree murder:...")
    R v Ryan, 2015 ABCA 286 (CanLII), 607 AR 47, per Picard JA, at paras 28 to 33
  16. ↑ R v Patterson, 1998 CanLII 2154 (ON CA), [1998] OJ No 937 (CA), per curiam, at para 1
    R v Pitkeathly, 1994 CanLII 222 (ON CA), 29 CR (4th) 182, per curiam at 184-5
    R v T(R), 1992 CanLII 2834 (ON CA), 17 CR (4th) 247, per Doherty JA at 263
  17. ↑ R v Mann, 2010 ONCA 342 (CanLII), 261 OAC 379, per MacPherson JA (3:0), at para 21
  18. ↑ R v Garofoli et al., 1988 CanLII 3270 (ON CA), 41 CCC (3d) 97, per Martin JA at 153 aff'd on other issue at 1990 CanLII 52 (SCC), per Sopinka J
  19. ↑ R v Vickers, 1998 CanLII 14982 (BC CA), 105 BCAC 42, per Esson JA (3:0)

Conduct During Trial

Though not the same as a guilty plea, the making of admissions during trial can be considered as a mitigating factor.[1]

A finding that the accused lied in his testimony cannot be used as an aggravating factor to sentence.[2] However, it can be used to establish that the accused has "demonstrate[d] a lack of insight into the gravity and seriousness of his crimes".[3]

  1. ↑ R v Davis, 2012 ONSC 6486 (CanLII), per Spies J, at para 34
    R v White, 2008 CanLII 58421 (ONSC), [2008] OJ No 4511 (ONSC), per Spies J, at para 21 ("Although not the same as a guilty pleas, I do find these significant admissions are a mitigating factor"
  2. ↑ R v Bradley, 2008 ONCA 179 (CanLII), [2008] OJ No 955, per curiam, at paras 15 and 16
    R v Kozy, 1990 CanLII 2625 (ON CA), [1990] OJ No 1586 (CA), per Carthy JA
    R v Bani-Naiem, 2010 ONSC 1890 (CanLII), [2010] OJ No 1234, per MacDonnell J, at para 13
  3. ↑ Bani-Naiem, ibid., at para 13

Strict Bail Conditions

See also: Strict Bail Conditions Credit and Remand Credit

Delay

Delay between the date of the offence and sentence is not usually a reason for mitigation. If the delay is due to flight of the accused from the jurisdiction he is not entitled to any benefit from the passage of time. [1]

Where the breach of s. 11(b) rights to a trial in a reasonable time is insufficient to warrant a stay of proceedings, the delay can still be a mitigating factor on sentence in limited circumstances.[2] This will also apply to circumstances where delay is caused by appeal.[3]

Courts are reluctant to give sentence credit on this bais, however.[4]

Dated offences, such as historical sexual assault, do not warrant a significant reduction on penalty simply due to the time that has passed since the offence as the magnitude of the offence and degree of culpability remains the same.[5]

On serious offences, the passage of time between the offence and sentence does not reduce the need for denunciation or deterrence.[6]

Other factors in delay to consider include:[7]

  1. the effect of delay on sentencing is a case‑specific inquiry
  2. deliberate acts to evade detection by the authorities, whether flight or contribution to delayed complaint tend to weigh against assigning mitigating impact to the fact of delay
  3. reform and rehabilitation during the intervening period tend to eliminate the prospect of recidivism and to nullify the need for specific deterrence to be reflected in the court's disposition
  4. certain very serious crimes require sentences with measures of general deterrence and denunciation regardless of the offender's lengthy crime‑free existence subsequent to the crime(s)
  5. objectively speaking, taking into account delay, the court's disposition should not be seen as a reward or benefit eliminating or depreciating the concept of proportionate punishment.
  1. ↑ R v Jansons, 2008 YKCA 15 (CanLII), 260 BCAC 254, per Kirkpatrick JA
  2. ↑ R v McAulay, 1987 ABCA 44 (CanLII), 78 AR 142, per Kerans JA
    R v Bosley, 1992 CanLII 2838 (ON CA), 18 CR (4th) 347, per Doherty JA, at p. 358 ("... excessive delay which causes prolonged uncertainty for the appellant but does not reach constitutional limits can be taken into consideration as a factor in mitigation of sentence")
    R v Leaver, 1996 CanLII 10223 (ON CA), 3 CR (5th) 138 (ONCA), per curiam
    R v Dwyer, [2000] OJ 3598 (ONSC)(*no CanLII links)
    R v Spencer, 2003 CanLII 36890 (ONSC), [2003] OJ 10 (ONSC), per Mossip J
    R v Morris, 2018 BCSC 803 (CanLII), per Sharma J, at paras 35 to 39
    R v Volk, 2018 BCPC 58 (CanLII), per Koturbash J, at para 27
    R v Schertzer, 2015 ONCA 259 (CanLII), 325 CCC (3d) 202, per Benotto JA, at para 129
    R v Legerton, 2015 ABQB 268 (CanLII), 604 AR 373, per Yamauchi J, at para 69
    R v TMB, 2013 ONSC 4019 (CanLII), 299 CCC (3d) 493, per Code J, at para 74 (“ It is settled law that delays in trial proceedings and delays during the appeal period, although within constitutional norms, can have a mitigating effect on sentence. ... . The substantial delays in this case have undoubtedly caused ongoing uncertainty for B. and, equally significantly, if he was now to serve an eight month custodial sentence and likely lose his job, at age 59, there would be additional hardship in attempting to re-enter the job market at age 60.“)
    R v Sheng, 2010 ONCA 296 (CanLII), 254 CCC (3d) 153, per Laskin JA, at para 60
    R v Viccars, 2010 ABPC 351 (CanLII), DTC 5184, per Fradsham J, at para 62
    Right to a Trial Within a Reasonable Time
  3. ↑ TMB, supra, at paras 73 to 75
    R v Williams, 2009 244 CCC (3d) 153(*no CanLII links) , at paras 29 to 32
    Sheng, supra, at para 60
    R v Boucher, 2004 CanLII 17719 (ON CA), 186 CCC (3d) 479, per Simmons JA, at para 33
    R v Symes, 1989 CanLII 7173 (ON CA), 49 CCC (3d) 81, per Goodman JA, at paras 96 to 97
  4. ↑ R v Glykis, 1995 CanLII 1277 (ON CA), , 41 CR (4th) 310 (ONCA), per Dubin CJ (3:0)
  5. ↑ R v Archibald, 2012 ABCA 202 (CanLII), 557 WAC 188, per curiam (3:0) , at para 13
  6. ↑ R v Partridge, 2005 NSCA 159 (CanLII), 206 CCC (3d) 87, per Bateman JA (3:0)
  7. ↑ R v Critton, 2002 CanLII 3240 (ONSC), [2002] OJ No 2594 (ONSC), per Hill J, at para 76

Pre-trial Custody

See also: Remand Credit

719
[omitted (1) and (2)]

Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

Exception

(3.1) Despite subsection (3) [determination of sentence – remand credit], if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

Reasons

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.
[omitted (3.3), (3.4), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 719; R.S., 1985, c. 27 (1st Supp.), s. 157; 1995, c. 22, s. 6; 2009, c. 29, s. 3; 2018, c. 29, s. 66.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 719(3), (3.1) and (3.2)


Defined terms: "court" (s. 716)

Section 719(3.1)—as it existed prior to December 2018—consists of amendments from 2010 where the practice of giving 2:1 credits was significantly limited. Certain judges have given 1.5:1 credit where warranted for loss of remission.[1]

The judge cannot deny pre-trial custody credit to a sentence simply because of the nature his record.[2]

  1. ↑ R v Johnson, 2011 ONCJ 77 (CanLII), 268 CCC (3d) 423, per M Green J
    R v Dann, 2011 NSPC 22 (CanLII), per Derrick J
  2. ↑ R v Crawford, 2010 ABCA 290 (CanLII), 490 AR 148, per Rowbotham JA (3:0)

Publicity

A sentence may be adjusted to account for all "collateral consequences."[1] Publicity does constitute a "collateral consequence" and so is relevant in determining an "individualized" sentence.[2] However, where the consequence is "inevitable," the mitigation is "greatly diminished." [3]

Publicity is an "ordinary incident of our justice system."[4]

Publicity can mitigate when it "fulfil[s] a denunciatory function that has an inordinate impact on the offender."[5]

Publicity cannot substitute punishment

However there are dangers in using publicity as mitigation. Publicity is often a consequence of the seriousness of the offence and it should not "replace" punishment or else the prominent and successful will be entitled to lesser sentences.[6]

Courts should exercise caution against permitting "publicity to substitute for punishment." [7]

General Deterrence

It is an error of law to "rely on pretrial publicity to determine whether the need for general deterrence has been satisfied." [8]


  1. ↑ Suter at para 46
  2. ↑ Eliasson, supra, at para 19 ("the adverse effects of publicity are a "collateral consequence" as defined in Suter and are relevant, if at all, in determining how the individual circumstances of the offence and the offender affect the appropriate "individualized" sentence")
  3. ↑ Eliasson, supra, at para 19 ("As a matter of principle, the mitigating force of collateral circumstances that are "almost inevitable" is "greatly diminished"")
    Joseph, supra, at para 133
    Suter at para 49
    Zentner, supra at para 43
  4. ↑ R v Chung, 2023 ABKB 372 (CanLII), per Renke J, at para 132
    R v Shrivastava, 2019 ABQB 663 (CanLII), per J, at para 63
  5. ↑ R v Shrivastava, 2019 ABQB 663 (CanLII), per J, at para 63 Deck at para 17
    R v Heatherington, 2005 ABCA 393 at para 5
  6. ↑ Shrivastava, supra at para 63 ("Adverse publicity should be used cautiously in mitigation. Among other reasons, cases might be newsworthy because of factors that should aggravate sentence. To use the publication of these factors to mitigate would be “totally backwards”. More concerningly, “[t]here is a grave danger that the suggestion that publicity replaces punishment, will degenerate into lower sentences for the prominent, the successful, and those holding public office”")
    R v Zentner, 2012 ABCA 332 (CanLII), 294 CCC (3d) 174, per curiam, at para 49
    R v Friesen, 2022 ABCA 147 (CanLII) at para 38:
  7. ↑ R v Eliasson, 2021 ABCA 188 (CanLII), per curiam, at para 19
  8. ↑ R v Joseph, 2020 ONCA 733 (CanLII), per curiam, at paras 115 to 122

Civil Liability

Where the offender is likely to face substantial civil liability and he is not otherwise impecunious, then this should be a factor in sentence.[1]

  1. ↑ R v Stone, 2001 BCCA 728 (CanLII), 20 MVR (4th) 177, per Mackenzie JA (3:0), at paras 32 to 35
    R v Sadler, 2009 BCCA 386 (CanLII), 274 BCAC 308, per curiam (3:0), at paras 23 to 29
    R v Giles, 2012 BCSC 775 (CanLII), per J
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