View source for Aggravating and Mitigating Factors

{{Fr|Facteurs_aggravants_et_atténuants}}
{{Currency2|November|2020}}
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{{HeaderPrinciples}}
==General Principles==

Section 718.2 provides a non-exhaustive list of secondary principles and objectives in sentencing.<ref>
{{CanLIIRP|Nasogaluak|2848x|2010 SCC 6 (CanLII)|[2010] 1 SCR 206}}{{perSCC|LeBel J}}{{atL|2848x|40}}</ref>
This list includes a list of aggravating and mitigating circumstances:
{{quotation2|
; 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 {{AnnSec7|742.1}} 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;

{{removed|(b), (c), (d) and (e)}}
{{LegHistory90s|1995, c. 22}}, s. 6; 
{{LegHistory90s|1997, c. 23}}, s. 17; 
{{LegHistory00s|2000, c. 12}}, s. 95; {{LegHistory00sA|2001|c. 32}}, s. 44(F), {{LegHistory00sA|2001|c. 41}}, s. 20; 
{{LegHistory00s|2005, c. 32}}, s. 25; {{LegHistory10sA|2012|c. 29}}, s. 2; 
{{LegHistory10s|2015, c. 13}}, s. 24, {{LegHistory10sA|2015|c. 23}}, s. 16; 
{{LegHistory10s|2017, c. 13}}, s. 4;
{{LegHistory10s|2019, c. 25}}, s. 293;
{{LegHistory20s|2021, c. 27}}, s. 5.
{{Annotation}}
|{{CCCSec2|718.2}}
|{{NoteUp|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 [http://www.canlii.ca/t/7vf2#sec380.1 s. 380.1].<ref>
see [[Sentencing Fraud]]
</ref>

; 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.<ref>
{{CanLIIRx|Pantherbone|hspkf|2018 ABPC 142 (CanLII)}}{{perABPC|LeGrandeur J}} - does not apply<br>
{{CanLIIRx|Harrison|grvxh|2016 ABPC 112 (CanLII)}}{{perABPC|Redman J}} - does not apply<br>
{{CanLIIRP|Downing|hvxzk|2018 ABPC 257 (CanLII)|150 WCB (2d) 316}}{{perABPC|Collinson J}} - does apply<br>
{{CanLIIRx|Prince|hsjtg|2018 BCSC 987 (CanLII)}}{{perBCSC|Ker J}} - does apply<br>
{{CanLIIRx|Zhang|hv93x|2018 ONCJ 646 (CanLII)}}{{perONCJ|Bentley J}} - does apply<br>
see also [[Child Pornography Sentencing]]
</ref>

There is also suggestion that it does not apply to luring, even if the young person at issue is a real person.<ref>
{{supra1|Pantherbone}}<br>
{{CanLIIRx|Randall|ht1qq|2018 ONCJ 470 (CanLII)}}{{perONCJ|Wakefield J}} (does not apply to undercover officer)<br>
[[Child Luring (Offence)]]
</ref>

; 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.<ref>
{{CanLIIRx|SJB|hs4pq|2018 MBCA 62 (CanLII)}}{{perMBCA|Mainella JA}}{{atsL|hs4pq|19| to 25}}<br>
</ref>
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.<ref>
{{ibid1|SJB}}{{atL|hs4pq|19}}<br>
{{CanLIIRP|Alcantara|gxgmn|2017 ABCA 56 (CanLII)|353 CCC (3d) 254}}{{TheCourtABCA}}{{atL|gxgmn|69}}<br>
{{CanLIIRP|BM|20swc|2008 ONCA 645 (CanLII)|81 WCB (2d) 410}}{{TheCourtONCA}}{{atL|20swc|7}}<br>
{{CanLIIRx|Barrett|g01td|2013 QCCA 1351 (CanLII)}}{{TheCourtQCCA}}{{atsL|g01td|24| to 25}}<br>
</ref>

Similarly, the absence of mitigation cannot then be used as aggravation warranting a sentence in the upper range of penalty.<ref>
{{ibid1|SJB}}{{atL|hs4pq|19}}<br>
{{supra1|Alcantara}}{{atL|gxgmn|69}}<br>
</ref>

; Appellate Review
It is an error of law to "over-emphasize" a single factor over all other factors.<ref>
{{CanLIIRP||M(CA)|1frb9|1996 CanLII 230 (SCC)|[1996] 1 SCR 500}}{{perSCC|Lamer CJ}}{{atL|1frb9|90}}<br>
{{CanLIIRP|WE|27jkw|2010 NLCA 4 (CanLII)|251 CCC (3d) 213}}{{perNLCA|Rowe JA}}{{atL|27jkw|26}}<br>
</ref>

The weighing of factors will be an error in principle if the judge exercises his "discretion unreasonably" in emphasizing or minimizing a factor.<Ref>
{{CanLIIRP|Friesen|j64rn|2020 SCC 9 (CanLII)|391 CCC (3d) 309}}{{perSCC|Wagner CJ and Rowe J}}{{atL|j64rn|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”")
</ref>
{{Reflist|2}}

==Factors of Offender and Offence==
* [[Sentencing Factors Relating to the Offender]]
** [[Sentencing Factors Relating to the Criminal Proceedings]]
* [[Sentencing Factors Relating to the 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<ref>
{{CanLIIRP|Bradley|1w2bf|2008 ONCA 179 (CanLII)|[2008] OJ No 955}}{{TheCourt}}{{atsL|1w2bf|15| to 17}}<br>
</ref>
* absent a charge for perjury, whether the accused was being honest in the trial proceedings<ref>
{{CanLIIRx|Charania|g66v8|2014 ONSC 1695 (CanLII)}}{{perONSC|AJ Goodman JA}}{{atsL|g66v8|15| to 21}}<br>
</ref>
* character of the victim or other parties
* romantic fixation upon a co-accused and other gender-based stereotypes<ref>
{{CanLIIR|Onose|1glqt|2004 ABPC 44 (CanLII)}}{{perABPC|Lamoureux J}}{{AtL|1glqt|31}}
</ref>
* risk of harm while incarcerated
* costs associated with incarceration<ref> 
{{CanLIIRP|Hynes|gsbkk|2016 NLCA 34 (CanLII)|380 Nfld & PEIR 6}}{{perNLCA|Welsh JA}}{{atsL|gsbkk|36| to 37}}<br>
</ref>

; 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."<ref>
{{CanLIIRx|Ellis|fw1rk|2013 ONSC 908 (CanLII)}}{{perONSC|Campbell J}}{{atL|fw1rk|16}} - in context of bail revocation application
</ref>

{{Reflist|2}}