Sentencing Factors Relating to the Offender

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General Principles

Section 718.2(a) provides that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender".

Age and Youthfulness

Age is relevant to sentencing as a mitigating factor. A youthful person is seen as having a greater chance of reforming and maturing over time. The courts in certain cases recognize young adults as sometimes foolish, inexperienced, irresponsible, immature and have a "greater prospects for rehabilitation". This diminishes their level of responsibility and moral blameworthiness.

Likewise, the principle of restraint is a prominent factor for young offenders.

Youthfulness as a factor is of primary importance for first time offenders. The factor becomes less important when the youthful offender has "considerable amount of experience in the criminal justice system, has been subject to various forms of probationary and correctional supervision, and has not only breached those conditions but has also re-offended".

Where not otherwise required, a judge sentencing of a youthful offender should put more weight on rehabilitation over general deterrence.

The objectives for youthful first offenders should primarily be on rehabilitation and specific deterrence.

The "length of a penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence".

For an older accused, age can factor against rehabilitation and reform.

At a certain age there is a recognized category of offender for which imprisonment would be considered "pointless or an unreasonable burden". However, some cases have also pointed to advanced age being an inappropriate reason for sentence reduction as it should be dealt with during sentence administration.

Advanced Age Offenders

An offender of advanced age can "in some circumstances" be considered a mitigating feature. This has been justified on the basis that prison time is tougher on older persons and that they will have less life expectancy after release.

Employment

In general, a good work history is mitigating as it indicates a prior good character.

The offender's "opportunity for employment" is an important factor to determine if there is a "reasonable prospect for rehabilitation".

Professionals

Police Officers

Offences committed by persons who are "sworn to uphold the law" such as police officers have a "special duty to be faithful to the justice system" and so sentences require the objectives of denunciation has heightened significance.

Police officer offenders who commit a breach of trust will be subject to "severe sentences" absent exceptional mitigating factors.

A peace officer being sentenced to a period of incarceration is at risk from the general population and will inevitably serve much of the sentence in protective custody, which should warrant mitigating the punishment.

Effect on Employment and Status

Loss of professional or social status is not generally a mitigating factor nor is the ability to do a particular job well a mitigating factor.

However, it has been said that the "ruin and humiliation" brought upon the accused and his family as well as the loss of professional status can provide denunciation and deterrence.

Degree of Remorse and Attitude

Remorse is a mitigating factor. Remorse is demonstrated by the acceptance of responsibility through word or action as well as demonstrated insight into the offender's actions. A lack of remorse, however, does not make for an aggravating factor, but simply does not allow for the mitigating effect of remorse.

The courts should have "restraint...for persons who spontaneously acknowledge their culpability, have genuine remorse and seek voluntarily to make reparations."

A lack of remorse or acceptance of responsibility generally cannot be taken as an aggravating factor, but rather can only be taken as an absence of mitigating factors. Only in exceptional circumstances can the lack of remorse be taken as aggravating.

Remorse is a "one-way street" and can only have the effect of providing reduction to sentence.

An offender who "continues to maintain his innocence" cannot be found by that fact alone to lack "remorse or insight".

Strong Case

Remorse has little importance when the case is so strong that "guilt is inevitable".

Misconduct Negating Remorse

Where there is misconduct on the part of the accused during the course of proceedings, it will be "much more difficult to perceive the existence of remorse".

Mistake of Law

While not strictly a defence at trial, a mistake of law can be medicating for sentence. Where the accused honestly but mistakenly believe in the lawfulness of their actions they are therefore less morally blameworthy.

Shame and Embarrassment

The resultant shame and scorn suffered by an offender as a result of the offence should generally not warrant a lighter sentence.

When it comes to offences committed in the course of professional work, there should be little impact on sentence as the offender had "consciously chosen [to commit the offence while] they enjoyed a good reputation and a position of trust and status, which they abused to commit their crimes."

Repayment and Restitution

Where there has been "full restitution" made in a property offence, this might be a "special circumstance" justifying a conditional sentence where a jail sentence was otherwise appropriate.

It should still take "secondary role" to denunciation and deterrence in large scale frauds involving breach of trust.

Character

A mitigating factor that may be considered is whether the offence is "out of character".

"Stressors" that "precipitated" the offence rendering the offence "out of character" will have a mitigating effect.

Letters from members of the community and family of the offender can be put into evidence at sentencing. However, the weight may be limited where there is no indication that the writers knew about the circumstances of the offence or prior record.

Risk to Re-Offend

The risk that the accused poses to re-offend is a valid factor for sentencing.

A greater the risk to re-offend the more consideration there will be upon a custodial sentence.

In sexual abuse against children, the fact that an accused is unlikely to re-offend is not a significant consideration. The emphasis should be on general deterrence and denunciation.

Post Offence Conduct

Efforts at rehabilitation and carerr advancement post-offence is a mitigating factor.

Rehabilitation, while the accused has fled to avoid sentencing, is not a mitigating factor.

Post-offence bad behaviour is generally not an aggravating factor. Criminal offences committed after the offence will not be aggravating. However, efforts in attempting to frustrate the investigation, such as telling a victim not to report the offence or attempting to commit further offences, can be used as aggravating.

Failure to Assist in the Investigation

Where an accused fails or refuses to assist police in an investigation it can at best neutralize mitigating factors. It cannot be an aggravating factor.

Offender's History of Trauma

The presence of relevant abuse in the offender's history is sometimes found to be mitigating. This is particularly notable in child sexual offences where the offender had a history of abuse upon themselves.

Addiction and Substance Abuse

Substance abuse, by itself, is not ordinarily a mitigating factor. Nor is a history of addiction a mitigating factor to sentence. However, it can suggest a lower level of moral culpability and otherwise good character but for the addiction. It is also helpful for the court to know about to determine whether rehabilitation is a possibility when crafting an appropriate sentence.

Gambling addiction is not generally a mitigating factor. However, some courts have treated it as a reduction to moral culpability as it has the effect of reducing the accused's free will and power of control due to a mental disease.

An offender with issues with substance abuse may be subject to probationary terms requiring them to abstain absolutely from the possession or consumption of the substances. However, some courts will take the view that such restrictions can be counter-productive where there is no belief that they will comply with the conditions.

Addictions and Mental Health

It has been noted that the combination of addiction and mental health make rehabilitation harder.

Mental Health

Mental health can be a mitigating factor to sentence even where it is not so severe to remove criminal responsibility.

Reduction of sentences due to psychiatric grounds fall into two categories. The mental illness contributed to or caused the commission of the offence or the effect of imprisonment or penalty would be disproportionately sever because of the offender's condition.

An offender's emotional condition due to the personal circumstances of the accused should not be conflated with "mental health problems" that should accord some special treatment in sentence.

Causal Connection

Mental disorders, such as schizophrenia, can be a mitigating factor even when there is no a direct causal connection between the offence and the illness. This is also true where the offender was not suffering from delusions at the time. It is sufficient that the illness contributed in some way to the offence. However, the offender's mental health condition is not a factor in sentencing where there is no connection at all between the offence and the condition.

By contrast, a person who commits a crime of violence "while in a sane and sober condition, unaffected by mental impairment of any kind, has the highest level of responsibility, or moral culpability."

Incarceration

Treatment in the community is generally preferred over incarceration. However, this is less so for serious offences.

Mental illness is often considered a basis to order treatment and supervision over punishment.

Deterrence and Denunciation

General deterrence should be given "very little, if any, weight" since it is not an appropriate manner of making an example to others.

Where mental health plays "a central role in the commission of the offence ... deterrence and punishment assume less importance".

However, at times mental illness will be considered an aggravating factor that will increase sentence where it is necessary to protect the public from a dangerous persons who has committed a dangerous offence. Mental illness reduces the importance of denunciation and deterrence and increases the importance of treatment. This includes situations where rehabilitation or cure is impossible.

It is suggested it should be given little if any weight since the punishing of the offender will not make an example to others by way of general deterrence.

The mental condition will attenuate the relative importance of deterrence and denunciation.

Degree of Responsibility

A mental illness diminishes the offender’s degree of responsibility.

Impact of Jail

Incarceration of persons with mental health issues can create a disproportionate impact upon them, which can be a mitigating factor.

An Offenders mental illness can make a jail sentence more severe.

Cognitive Deficits

Diminished intellectual capacity is not a mitigating factor warranting a lesser sentence.

The cognitive deficit from Fetal Alcohol Spectrum Disorder (FASD) results in limited restraints as well as an appreciation of the immorality of their actions. This reduces the impact on deterrence and denunciation and increases the mitigation on sentence.

Systemic failures to treat the offender's mental health are mitigating factors.

Cultural Background

It has been observed that the purposes and principles of sentencing are "sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence and the values of the community from which the offender comes".

Cultural and customary differences cannot be considered mitigating where it involves offences of violence or offences of a sexual nature.

However, a lack of facility with English has been treated as mitigating in certain circumstances.

Sympathy and Compassion

The court may allow for a degree of leniency for sympathetic or compassionate offenders. This will occasionally be done where the accused can show that his "health is so precarious" that the offender may not survive if they are incarcerated. However, simply poor health or age is not usually a reason on its own.

In some cases, sympathy for family members of the accused may be relevant. But it should not "override all other of the considerations for sentencing".

Effect on Family and Others

The effect of incarceration upon the accused family may sometimes be a factor.

The impact on family cannot override other factors.

Effect on Immigration

Section 64 of the Immigration and Refugee Protection Act states:

64(1)

No appeal for inadmissibility

No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
64(2)

Serious criminality

For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.

– IRPA

Risk of Deportation as Factor

The risk of deportation can be a factor to consider sentencing. It must be weighed and considered with all other factors and circumstances of the case. However, it should not bring the sentence out of the appropriate range. However, the factor is a discretionary one.

Immigration consequences are not aggravating or mitigating factors since they do not inform the gravity of the offence or responsibility of the offender. However, it is relevant to "individualization, parity, and rehabilitation".

Suggested Approach

The preferred approach is one where the sentencing judge must first determine a fit and proper sentence and only then consider immigration consequences.

The impact on the ability to get a VISA to places like the US may influence the court to consider an absolute discharge over a conditional discharge due to the treatment of probation to immigration.

The effect of an offender's immigration status on the likelihood of day parole is not a factor in sentence.

Sentence Must Remain in the Appropriate Range

The risk of deportation is a "legitimate consideration for a sentencing judge" however "cannot be used to justify an otherwise unfit sentence" even where the offender has "virtually no connection" with the other country. The sentencing approach must not create a separate sentencing scheme for those at risk of deportation.

A difference of one day custody in sentence will usually have "inconsequential" impact on denunciation, retribution, or deterrence, however, may still have "enormous" consequences on immigration status, in which case a reduction would be warranted.

Children

The judge may consider the impact of deportation on the offender's dependent children as mitigation.

Counsel's Failure to Raise Immigration Status

A failure of counsel to raise the issue of immigration effect can by grounds of appellate intervention.

"Collateral Consequences" of Commission of the Offence

Relevant collateral consequences include "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender."

They do not go to considerations of aggravating or mitigating factors, nor the gravity of the offence or moral blameworthiness of the offender.

The analysis of collateral consequences is upon "whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances".

Personal Circumstances of Offender

Collateral consequences upon the offender, including being victim of vigilante justice, forms part of the offender's personal circumstances and should be taken into account on sentencing. They are relevant to sentencing as part of the considerations for individiualization and parity.

When It can be Mitigating

The consequence does not need to "emanate from state misconduct" for it to be mitigating.

After mitigating effects arising from collateral consequences are applied the sentence must still conform with the principle of proportionality.

Victimization of Accused During Proceedings

An incarcerated offender who is attacked by fellow inmates can be taken as a collateral factor.

Other Remedies

An accused who suffers harsh treatment while in remand, including being victimized, may have remedy under s. 24(1) of the Charter of Rights and Freedoms.

Examples — Vigilante Justice

Judges must avoid giving "too much weight to vigilante violence" at sentencing or else risk giving undue legitimacy to it in the judicial process. Such violence should only be considered to a "limited extent".

Aboriginal Background

See Aboriginal Sentencing Principles and Factors

During Proceedings

• Sentencing Factors Relating to the Criminal Proceedings