Sentencing Factors Relating to the Criminal Proceedings: Difference between revisions

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{{CanLIIR|Panday|1svfg|2007 ONCA 598 (CanLII)}}{{perONCA|MacPherson JA}} (3:0)</ref>  
{{CanLIIR|Panday|1svfg|2007 ONCA 598 (CanLII)}}{{perONCA|MacPherson JA}} (3:0)</ref>  
The court may consider the bail conditions that the offender up to the date of sentencing.<ref>
The court may consider the bail conditions that the offender up to the date of sentencing.<ref>
{{CanLIIR|Downes|1mkm6|2006 CanLII 3957 (ON CA)}}{{perONCA|Rosenberg JA}} (3:0){{atL|1mkm6|23}} (“ is now well established that an offender should be given credit for pre-sentence custody. The rationale for doing so comes from the provisions of the Criminal Code, R.S.C. 1985, c. C-46 and judicial recognition of the conditions under which pre-sentence custody is served. Section 719(3) of the Criminal Code expressly provides that the sentencing court may take pre- trial custody into account. As Arbour J. said in R. v. Wust, ... "while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3)".)</ref>  
{{CanLIIR|Downes|1mkm6|2006 CanLII 3957 (ON CA)}}{{perONCA|Rosenberg JA}} (3:0){{atL|1mkm6|23}} (“ is now well established that an offender should be given credit for pre-sentence custody. The rationale for doing so comes from the provisions of the Criminal Code, R.S.C. 1985, c. C-46 and judicial recognition of the conditions under which pre-sentence custody is served. Section 719(3) of the Criminal Code expressly provides that the sentencing court may take pre- trial custody into account. As Arbour J. said in R v Wust, ... "while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3)".)</ref>  
If the individual was under house arrest conditions for bail, this may be accounted as a reason to reduce the sentence as the house arrest may have a punitive element to it.  This is a discretionary, however, and will usually needed to be justified by showing that the offender's circumstances were particularly tough beyond the average person.<ref>
If the individual was under house arrest conditions for bail, this may be accounted as a reason to reduce the sentence as the house arrest may have a punitive element to it.  This is a discretionary, however, and will usually needed to be justified by showing that the offender's circumstances were particularly tough beyond the average person.<ref>
{{CanLIIR|Knockwood|26086|2009 NSCA 98 (CanLII)}}{{perNSCA|Saunders JA}}</ref>
{{CanLIIR|Knockwood|26086|2009 NSCA 98 (CanLII)}}{{perNSCA|Saunders JA}}</ref>

Revision as of 07:43, 11 February 2021

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]

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.[10]

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.[11]

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.[12]

Offer of Lesser Plea

The mere offer to plead to a lesser included offence does not amount to a factor of mitigation.[13]

Timing of Plea

The timing of a guilty plea is important. An early guilty plea generally deserves "considerable weight" in sentencing.[14] It may entitle the accused to "substantial credit" in sentence.[15]

A guilty plea during trial may still deserve mitigation on sentence.[16]

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.[17]

  1. ↑ R v Holder, 1998 CanLII 14962 (ON SC), (1998), 21 C.R. (5th) 277 (Ont. S.C.J.), per Hill J at 281-2
    R v Beier, [1995] OJ No 2552 (C.A.), 1995 CanLII 681 (ON CA), per curiam, at para 2
    R v Sawchyn, 1981 ABCA 173 (CanLII), (1981), 60 CCC (2d) 200 (Alta. C.A.), per Laycraft JA at 210
  2. ↑ R v Gardiner, [1982] 2 SCR 368, (1982) 68 CCC 477 (SCC), 1982 CanLII 30 (SCC), per Dickson J (4:3)
    R v Fegan, 1993 CanLII 8607 (ON CA), per Finlayson JA (3:0) at 360–61, 13 O.R. (3d) 88 (C.A.)
    R v Ticne, 2009 BCCA 191 (CanLII), 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), per Hall JA, at para 7
  4. ↑ R v Johnson and Tremayne, [1970] 4 CCC 64 (Ont. C.A.), 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), (1994), 20 O.R. (3d) 13 (C.A.), per curiam (3:0), at p. 17
    R v Santos (J.) , (1993), 67 O.A.C. 270 (C.A.)(*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] OJ No 461 (C.A.), 1998 CanLII 2643 (ON CA), per curiam, at para 6
  8. ↑ R v FHL, 2018 ONCA 83 (CanLII), 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 A.R. 398, per Watson JA, at para 12 (“its significance as [a mitigating] factor is variable”)
    R v Carreira, 2015 ONCA 639 (CanLII), per Epstein JA, at para 15
  10. ↑ FHL, supra, at paras 22 to 23
  11. ↑ 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.")
  12. ↑ R v Conlon, 2011 ABPC 259 (CanLII), per Daniel J
  13. ↑ R v Shyback, 2018 ABCA 331 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 (complete citation pending) at paras. 28-33, 607 AR 47
  14. ↑ R v Patterson, [1998] OJ No 937 (C.A.), 1998 CanLII 2154 (ON CA), per curiam, at para 1
    R v Pitkeathly, 1994 CanLII 222 (ON CA), (1994), 29 C.R. (4th) 182 (Ont. C.A.), per curiam at 184-5
    R v T(R), 1992 CanLII 2834 (ON CA), (1992), 17 C.R. (4th) 247 (Ont. C.A.), per Doherty JA at 263
  15. ↑ R v Mann, 2010 ONCA 342 (CanLII), per MacPherson JA (3:0), at para 21
  16. ↑ R v Garofoli et al., 1988 CanLII 3270 (ON CA), (1988), 41 CCC (3d) 97 (Ont. C.A.), per Martin JA at 153 aff'd on other issue at 1990 CanLII 52 (SCC), per Sopinka J
  17. ↑ R v Vickers, 1998 CanLII 14982 (BC CA), 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]

  1. ↑ R v Davis, 2012 ONSC 6486 (CanLII), per Spies J, at para 34
    R v White, [2008] OJ No 4511 (ON SC), 2008 CanLII 58421 (ON SC), 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 (C.A.), per Carthy JA, at paras 4 to 6
    R v Bani-Naiem, 2010 ONSC 1890 (CanLII), [2010] OJ No 1234, per MacDonnell J, at para 13

Bail Conditions

Strict bail conditions are not treated as equivalent to pre-trial detention, and so remand credit is not applicable for strict bail conditions.[1] The court may consider the bail conditions that the offender up to the date of sentencing.[2] If the individual was under house arrest conditions for bail, this may be accounted as a reason to reduce the sentence as the house arrest may have a punitive element to it. This is a discretionary, however, and will usually needed to be justified by showing that the offender's circumstances were particularly tough beyond the average person.[3]

Restrictive bail conditions should be treated flexibly. The amount of credit, if any, is in the discretion of the trial judge to determine.[4]

In Ontario, the following guidelines are suggested:[5]:

  • Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
  • As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
  • The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
  • The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
  • The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
  • Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

It is an error for the sentencing judge to consider how "necessary" the conditions were.[6]

  1. ↑ R v Panday, 2007 ONCA 598 (CanLII), per MacPherson JA (3:0)
  2. ↑ R v Downes, 2006 CanLII 3957 (ON CA), per Rosenberg JA (3:0), at para 23 (“ is now well established that an offender should be given credit for pre-sentence custody. The rationale for doing so comes from the provisions of the Criminal Code, R.S.C. 1985, c. C-46 and judicial recognition of the conditions under which pre-sentence custody is served. Section 719(3) of the Criminal Code expressly provides that the sentencing court may take pre- trial custody into account. As Arbour J. said in R v Wust, ... "while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3)".)
  3. ↑ R v Knockwood, 2009 NSCA 98 (CanLII), per Saunders JA
  4. ↑ Downes, supra, at para 36 (“a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach, ... the amount of credit and the manner in which it is to be taken into account as a mitigating factor is a matter for the trial judge.”)
  5. ↑ Downes, supra, at para 37
    R v Ijam, 2007 ONCA 597 (CanLII), per MacPherson JA (3:0), at para 63
  6. ↑ R v Joseph, 2020 ONCA 733 (CanLII), per curiam, at paras 107 to 114

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), per Kirkpatrick JA
  2. ↑ R v McAulay, 1987 ABCA 44 (CanLII), 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] OJ 10 (ONSC), 2003 CanLII 36890 (ON SC), per Mossip J
    R v Morris, 2018 BCSC 803, per Sharma J, at paras 35 to 39
    R v Volk, 2018 BCPC 58, per Koturbash J, at para 27
    R v Schertzer, 2015 ONCA 259, per Benotto JA, at para 129
    R v Legerton, 2015 ABQB 268, per Yamauchi J, at para 69
    R v TMB, 2013 ONSC 4019, 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), per Laskin JA, at para 60
    R v Viccars, 2010 ABPC 351 (CanLII){perABPC|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, at paras 29 to 32
    Sheng, supra, at para 60
    R v Boucher, 2004 CanLII 17719 (ON CA), per Simmons JA, at para 33
    R v Symes, 1989 CanLII 7173 (ON CA), 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), per curiam (3:0) , at para 13
  6. ↑ R v Partridge, 2005 NSCA 159 (CanLII), per Bateman JA (3:0)
  7. ↑ R v Critton, 2002 CanLII 3240 (ON SC), [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

Note up: 719(3), (3.1) and (3.2)

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), per M Green J
    R v Dann, 2011 NSPC 22 (CanLII), per Derrick J
  2. ↑ R v Crawford, 2010 ABCA 290 (CanLII), per Rowbotham JA (3:0)

Pre-Trial Publicity

It is an error of law to "rely on pretrial publicity to determine whether the need for general deterrence has been satisfied".[1]

  1. ↑ 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), per Mackenzie JA (3:0), at paras 32 to 35
    R v Sadler, 2009 BCCA 386 (CanLII), per curiam (3:0), at paras 23 to 29
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