Effect of Criminal Records in Sentencing: Difference between revisions

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[[fr:Effet du casier judiciaire sur la détermination de la peine]]
{{LevelZero}}{{HeaderSentencing}}
{{LevelZero}}{{HeaderSentencing}}
{{Currency2|July|2023}}
==General Principles==
==General Principles==
{{seealso|Sentencing Factors Relating to the Offender}}
{{seealso|Sentencing Factors Relating to the Offender}}
A criminal record will be an aggravating factor in sentencing.<Ref>
 
R v Squires, [http://canlii.ca/t/fqncr 2012 NLCA 20] (CanLII), (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.") </ref>
; Use of a Record
The criminal record can show that the offender is a "scofflaw",  is not rehabilitated or has not "learned from past mistakes".<ref>
The existence of a criminal record alone cannot be used to increase a sentence as it would effectively be punishing the accused twice.<Ref>
R v Barrett, [http://canlii.ca/t/fs19c 2012 NLCA 46] (CanLII), 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.”)</ref>
{{CanLIIR|Sinclair|jrghb|2022 MBCA 65 (CanLII)}}{{atL|jrghb|43}} (" An individual’s criminal record cannot be used to increase sentence since that would be to punish the accused twice. ")
</ref>
It can be used to assess future behaviour and risk, as well as prospects of rehabilitation.<ref>
{{ibid1|Sinclair}}{{AtL|jrghb|43}}
</ref>
 
The record can be used to assess the "normative character of the accused."<ref>
{{ibid1|Sinclair}}{{AtL|jrghb|43}}
</ref>
 
; Aggravating Factor
A criminal record of repeated related offending can be an aggravating factor in sentencing.<ref>
{{CanLIIRP|Squires|fqncr|2012 NLCA 20 (CanLII)|289 CCC (3d) 429}}{{perNLCA|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.") <Br>
{{ibid1|Sinclair}}{{AtL|jrghb|43}} ("When that record shows repeated related criminal behaviour, it may be viewed as an aggravating factor (thereby causing the sentence to be increased within the appropriate range of sentences) in order to address specific deterrence, protection of society and/or the prospects of rehabilitation")
</ref>
It's absence is not a mitigating but is simply neutral.<ref>
{{CanLIIRP|Lau|1tbnn|2004 ABCA 408 (CanLII)|193 CCC (3d) 51}}{{perABCA|Hunt JA}}{{AtL|1tbnn|29}}<br>
{{CanLIIRx|Felix|j3n6l|2019 ABCA 458 (CanLII)}}{{perABCA|Antonio JA}}{{AtL|j3n6l|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.")<br>
{{CanLIIRx|JJM|jfwm5|2021 ABCA 170 (CanLII)}}{{TheCourtABCA}}<Br>
{{Contra}} {{CanLIIRx|RM|j3hlh|2019 BCCA 409 (CanLII)}}{{perBCCA|Fenlon JA}} at paras 20 to 25
</ref>
 
The criminal record can show that the offender is a "scofflaw",  is not rehabilitated or has not "learned from past mistakes."<ref>
{{CanLIIRP|Barrett|fs19c|2012 NLCA 46 (CanLII)|291 CCC (3d) 213}}{{perNLCA|Hoegg JA}} (3:0){{atL|fs19c|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.”)</ref>


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.<ref>
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.<ref>
R v RA, [http://canlii.ca/t/1npk9 1994 CanLII 4524] (MBCA)<br>
{{CanLIIRP|RA|1npk9|1994 CanLII 4524 (MB CA)|88 CCC (3d) 184}}{{perMBCA-H|Twaddle JA}}<br>
R v Garnet Lee Cole, [http://canlii.ca/t/fx1v2 2013 NBPC 9] (CanLII) at para 34<br>
{{CanLIIRx|Garnet Lee Cole|fx1v2|2013 NBPC 9 (CanLII)}}{{perNBPC|Brien J}}{{atL|fx1v2|34}}<br>
</ref>
</ref>


It is an error in principle to determine a sentence based only on the sentence from a previous conviction.<Ref>
It is an error in principle to determine a sentence based only on the sentence from a previous conviction.<ref>
R v Squires, [2012] NJ 101 at para 55<br>
{{supra1|Squires}}{{atL|fqncr|55}}<br>
</ref>
</ref>
It is a "relevant consideration" but the sentence must be driven by the facts of the case.<ref>
It is a "relevant consideration" but the sentence must be driven by the facts of the case.<ref>
Squires{{ibid}} at para 55<br>
{{supra1|Squires}}{{atL|fqncr|55}}<br>
</ref>
</ref>
It is relevant to whether "the offence is uncharacteristic for the offender...whether the offender demonstrates a continuing attitude of disobedience of the law".<ref>
It is relevant to whether "the offence is uncharacteristic for the offender...whether the offender demonstrates a continuing attitude of disobedience of the law."<ref>
R v Presgrave, [2014] QCCA 105 at para 32<br>
{{CanLIIR-N|Presgrave|, [2014] QCCA 105}}{{at-|32}}<br>
</ref>
</ref>


A person who has received a discharge can still be considered a "first time offender".<ref>
A person who has received a discharge can still be considered a "first time offender."<ref>
R v Barclay, 2018 ONCA 114 at para 44, 49<Br>
{{CanLIIRP|Barclay|hq8dq|2018 ONCA 114 (CanLII)|44 CR (7th) 134}}{{perONCA|Hoy ACJ}}{{atsL|hq8dq|44|, 49}}<br>
</ref>
</ref>


'''Over-weighing Criminal Record'''<Br>
; 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".<ref>
The record "should not be given so much weight such that it becomes more influential than the circumstances of the offence."<ref>
Presgrave{{ibid}} at para 32<br>
{{ibid1|Presgrave}}{{at-|32}}<br>
</ref>
</ref>


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)".<ref>
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)."<ref>
R v Moller, 2012 ABCA 381 (CanLII) at para 11
{{CanLIIRP|Moller|fv6qt|2012 ABCA 381 (CanLII)|539 AR 300}}{{TheCourtABCA}} (3:0) {{atL|fv6qt|11}}
</ref>
</ref>


This is largely codified in s. 725:
This is largely codified in s. 725:
{{quotation|
{{quotation2|
'''Other offences'''<br>
; Other offences
725. (1) In determining the sentence, a court
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;
:(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;<br>
...<br>
{{removed|(1.1) and (2)}}
 
R.S., {{LegHistory80s|1985, c. C-46}}, s. 725; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 158, c. 1 (4th Supp.), s. 18(F); {{LegHistory90s|1995, c. 22}}, s. 6; {{LegHistory90s|1999, c. 5}}, s. 31.
| [{{CCCSec|725}}
|{{NoteUp|725|1|1.1|2}}
}}
 
An offence committed while on parole is an aggravating factor. By contrast the added consequences of parole revocation should not be mitigating.<ref>
{{CanLIIRP|Lavallee|1pz1b|2006 ABCA 324 (CanLII)|214 CCC (3d) 223}}{{perABCA|Costigan JA}} (3:0)
</ref>
 
; 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).<ref>
{{CanLIIRP|Andrade|2clt5|2010 NBCA 62 (CanLII)|260 CCC (3d) 353}}{{perNBCA|Robertson JA}} (3:0)<br>
see also {{CanLIIRP|Garcia and Silva|g16nj|1969 CanLII 450 (ON CA)|[1970] 1 OR 821 at 823, [1970] 3 CCC 124 (CA)}}{{perONCA|Gale ACJ}} (3:0)</ref>
 
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.<ref>
{{supra1|Garcia and Silva}}<br>
see also {{CanLIIRP|Edwards|1fbx6|2001 CanLII 24105 (ON CA)| OR (3d) 737}}{{perONCA|Rosenberg JA}} (3:0)</ref>
 
{{reflist|2}}
===Outstanding Charges===
Section 725 also addresses the use of pending charges:
{{quotation2|
; Other offences
725 (1) In determining the sentence, a court
:(a) ...
:(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) 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:
:(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:
Line 49: Line 102:
:(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.<br>
:(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.<br>


'''Attorney General’s consent'''<br>
; 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.
(1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.
<br>
<br>
'''No further proceedings'''<br>
; No further proceedings
(2) The court shall, on the information or indictment, note
(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
:(a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and
Line 58: Line 111:
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.
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.  
R.S., {{LegHistory80s|1985, c. C-46}}, s. 725; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 158, c. 1 (4th Supp.), s. 18(F); {{LegHistory90s|1995, c. 22}}, s. 6; {{LegHistory90s|1999, c. 5}}, s. 31.  
| [http://canlii.ca/t/7vf2#sec725 CCC]}}
| [{{CCCSec|725}}
|{{NoteUp|725|1|1.1|2}}
}}


An offence committed while on parole is an aggravating factor. By contrast the added consequences of parole revocation should not be mitigating.<ref>
{{reflist|2}}
R v Lavallee, [http://canlii.ca/t/1pz1b 2006 ABCA 324] (CanLII)
===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."<ref>
{{CanLIIRP|Larche|1q3xv|2006 SCC 56 (CanLII)|[2006] 2 SCR 762}}{{perSCC-H|Fish J}} (7:0){{atsL|1q3xv|1| and 2}}<br>
</ref>
 
There must be a connection between the offence before the court and the uncharged conduct.<ref>
{{ibid1|Larche}}{{atL|1q3xv|48}}<br>
</ref>
</ref>


'''Timing of Prior Record'''<br>
; "Forming part of the circumstances of the offence"
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).<ref>
Whether uncharged conduct is part of the circumstances of the offences is determined "on a case-by-case basis."<ref>
R v Andrade,  [http://canlii.ca/t/2clt5 2010 NBCA 62] (CanLII)<br>
{{ibid1|Larche}}{{atL|1q3xv|50}}<br>
see also R v Garcia and Silva, [1970] 1 O.R. 821 at 823, [1970] 3 CCC 124 (C.A.).</ref>
</ref>


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.<ref>R v Garcia and Silva<br>  
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."<ref>
see also R v Edwards [http://canlii.ca/t/1fbx6 2001 CanLII 24105] (ON CA), (2001), 54 O.R. (3d) 737 (C.A.)</ref>
{{CanLIIRP|Angelilo|1q3xt|2006 SCC 55 (CanLII)|214 CCC (3d) 309}}{{perSCC|Charron J}}{{atL|1q3xt|31}}<br>
</ref>


{{reflist|2}}
{{Reflist|2}}


===Coke Rule===
===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.
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.
<ref>
<ref>
eg. Andrade v R., [http://canlii.ca/t/2clt5 2010 NBCA 62] (CanLII) at para 2</ref>
eg. {{CanLIIRPC|Andrade v R|2clt5|2010 NBCA 62 (CanLII)|260 CCC (3d) 353}}{{perNBCA|Robertson JA}} (3:0){{atL|2clt5|2}}</ref>


{{reflist|2}}
{{reflist|2}}


===First Time Offenders===
===First Time Offenders===
A 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."<Ref>
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."<ref>
R v JH, [http://canlii.ca/t/1f9bx 1999 CanLII 3710] (ON CA), 135 CCC (3d) 338, at para 22<Br>
{{CanLIIRP|JH|1f9bx|1999 CanLII 3710 (ON CA)|135 CCC (3d) 338}}{{perONCA-H|Rosenberg JA}} (3:0){{atL|1f9bx|22}}<br>
</ref>
 
{{Reflist|2}}
 
===Uncharged Offences===
Section 725(1)(c) permits the a 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 ahve been specifically charged adn of which they have been validity convicted".<Ref>
R v Larche, [http://canlii.ca/t/1q3xv 2006 SCC 56] (CanLII) at paras 1 and 2<Br>
</ref>
 
There must be a connection between the offence before the court and the uncharged conduct.<Ref>
Larche{{ibid}} at para 48<Br>
</ref>
 
'''"Forming part of the circumstances of the offence"'''<br>
Whether uncharged conduct is part of the circumstances of the offences is determined "on a case-by-case basis".<ref>
Larche{{ibid}} at para 50<Br>
</ref>
</ref>


Where the conduct does not "form part of the the circumstances of the offence", it may still nonetheless be relevant should it "form part of the circumstances of the offender".<ref>
; Whether to Impose Custodial Sentence on First-time Offenders
R v Angelilo, [http://canlii.ca/t/1q3xt 2006 SCC 55] (CanLII) at para 31<Br>
When considering sentence for a first-time offender, incarceration should only be imposed when the gravity of the offence requires it.<ref>
{{CanLIIRP|Stein|htwh4|1974 CanLII 1615 (ON CA)|15 CCC (2d) 376 (ONCA)}}{{perONCA-H|Martin JA}} (3:0)<br>
{{CanLIIRP|Gaetz|1mrql|1992 CanLII 2509 (NS CA)|77 CCC (3d) 445}}{{perNSCA|Chipman JA}} (2:1)<br>
</ref>
</ref>


Latest revision as of 07:40, 23 August 2024

This page was last substantively updated or reviewed July 2023. (Rev. # 96222)

General Principles

See also: Sentencing Factors Relating to the Offender
Use of a Record

The existence of a criminal record alone cannot be used to increase a sentence as it would effectively be punishing the accused twice.[1] It can be used to assess future behaviour and risk, as well as prospects of rehabilitation.[2]

The record can be used to assess the "normative character of the accused."[3]

Aggravating Factor

A criminal record of repeated related offending can be an aggravating factor in sentencing.[4] It's absence is not a mitigating but is simply neutral.[5]

The criminal record can show that the offender is a "scofflaw", is not rehabilitated or has not "learned from past mistakes."[6]

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.[7]

It is an error in principle to determine a sentence based only on the sentence from a previous conviction.[8] It is a "relevant consideration" but the sentence must be driven by the facts of the case.[9] It is relevant to whether "the offence is uncharacteristic for the offender...whether the offender demonstrates a continuing attitude of disobedience of the law."[10]

A person who has received a discharge can still be considered a "first time offender."[11]

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."[12]

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)."[13]

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;

...
[omitted (1.1) and (2)]

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.[14]

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).[15]

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.[16]

  1. ↑ R v Sinclair, 2022 MBCA 65 (CanLII), at para 43 (" An individual’s criminal record cannot be used to increase sentence since that would be to punish the accused twice. ")
  2. ↑ Sinclair, ibid., at para 43
  3. ↑ Sinclair, ibid., at para 43
  4. ↑ 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.")
    Sinclair, ibid., at para 43 ("When that record shows repeated related criminal behaviour, it may be viewed as an aggravating factor (thereby causing the sentence to be increased within the appropriate range of sentences) in order to address specific deterrence, protection of society and/or the prospects of rehabilitation")
  5. ↑ 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
  6. ↑ 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.”)
  7. ↑ 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
  8. ↑ Squires, supra, at para 55
  9. ↑ Squires, supra, at para 55
  10. ↑ R v Presgrave, [2014] QCCA 105(*no CanLII links) , at para 32
  11. ↑ R v Barclay, 2018 ONCA 114 (CanLII), 44 CR (7th) 134, per Hoy ACJ, at paras 44, 49
  12. ↑ Presgrave, ibid., at para 32
  13. ↑ R v Moller, 2012 ABCA 381 (CanLII), 539 AR 300, per curiam (3:0) , at para 11
  14. ↑ R v Lavallee, 2006 ABCA 324 (CanLII), 214 CCC (3d) 223, per Costigan JA (3:0)
  15. ↑ 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)
  16. ↑ Garcia and Silva, supra
    see also R v Edwards, 2001 CanLII 24105 (ON CA), OR (3d) 737, per Rosenberg JA (3:0)

Outstanding Charges

Section 725 also addresses the use of pending charges:

Other offences

725 (1) In determining the sentence, a court

(a) ...
(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.

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

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)

See Also

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