Sentencing Factors Relating to the Offence

From Criminal Law Notebook

General Principles

See also: Sentencing Factors Relating to the Offender and Sentencing Factors Relating to the Criminal Proceedings

Offence-related factors that have been considered include:

  • Degree of Planning and Premeditation;
  • Duration of the Offence;
  • Reasons for the Offence to conclude;
  • Recency of the Offence;
  • Offender's Role in Offence;
  • Breach of Trust;
  • Status of the Victim including:
    • Harm or Risk of Harm on Victim;
    • Victim Under 18 Years of Age;
  • Public Abhorrence of Type of Crime;
  • Prevalence of This Type of Crime in the Community;
  • Degree of Cooperation with Police;
  • State Misconduct (including Police Misconduct).

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

Other factors and principles are listed at s. 718.2 of the Criminal Code:

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,
(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 [conditional sentence orders] or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;
...
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4; 2019, c. 25, s. 293.

– CCC

Note up: 718.2

Hate-based Offences

Section 718.2 (a)(i) requires the judge to take as aggravating "evidence that the offence was motivated by hate based on race or colour."

This factor is based on the principle that "crimes of violence increase when respect for the rights of others decreases". [1]

This factor can apply in circumstances where racist commentary accompanies an assault. [2]

  1. ↑ R v Ingram (1977), 35 CCC (2d) 376 (ONCA), 1977 CanLII 2018 (ON CA), per Dubin JA, at para 8
  2. ↑ Ingram
    R v Vrdoljak, 2002 CarswellOnt 1005, [2002] O.J. 1332(*no CanLII links)
    cf. R v Crowchief, 2016 ABPC 151 (CanLII), per Van Harten J

Degree of Planning and Premeditation

A greater degree of planning increases the moral culpability of the offender. Where the offence involved significant preparatory work it suggests that the offender is of bad character due to time on the commission of an offence. The court is more likely to conclude the person is a "career criminal".

Closely related to this is the degree of sophistication of the offence. An offender with a great deal of intelligence and drive is more culpable due to the ability to have insight into their conduct including the harm that would result from it.

Motive for the Offence

Self-Help

Offences committed for the purpose of retaliation or self-help are not mitigating factors. In certain circumstances, they increase the need for deterence. [1]

  1. ↑ R v Clayton, 2014 ABCA 27 (CanLII), per curiam (3:0), at para 35 (“ The trial judge did not consider Clayton's grievances against the WCB to be mitigating. This was well within his discretion because committing serious offences as retaliation or as an aspect of self-help is not mitigating and, in some instances, elevates deterrence to the position of being the primary sentencing consideration; ... . Nothing in the fresh evidence, had it been accepted, would have affected this conclusion.”)

Duration of the Offence

The duration of the offence is a useful measure of the offender's culpability. An offence that is ongoing for a period of time requires that the accused continuously decide to continue in a criminal endeavour. As they continue to decided to commit the offence their responsibility for the outcome increases. Related to this, it is a factor to consider whether the offender stopped the offence by their own accord due to a decision to cease criminal activity or whether they merely stopped because they have achieved their goal or were caught in the act.

The number of assaults, duration and intensity of the assaults are relevant factors. However, "the key factor is harm" to the victim".[1]

  1. ↑ R v Boucher, 2020 ABCA 208 (CanLII), per curiam, at para 24 ("The number of assaults, the duration of the offence, and the intensity of the assaults are relevant factors in sentencing, although the key factor is harm to the child...")

Recency of the Offence

Most often seen in the context of historical sexual assault offences, the “antiquity of the offence is not usually a mitigating feature” [1] However, “the offender may be entitled to a somewhat reduced sentence if he has led an exemplary life during the intervening years and demonstrates genuine remorse. Such circumstances would obviate the need for individual deterrence and time for rehabilitation.”[2]

  1. ↑ R v AR, 1994 CanLII 4524 (MB CA), [1994] 4 W.W.R. 620 (Man. C.A.), per Twaddle JA
  2. ↑ R v RA, 1994 CanLII 4524 (MBCA), per Twaddle JA, at para 34

Role in Offence

The accused's role in the offence will influence the penalty. Typically the greater and more culpable a role the accused played, the greater the penalty. This is particularly the case where the party has less autonomy, control, or awareness of the circumstances.

A "look out" or "driver" may be seen as less serious than those who participated in the offence itself.

Breach of Trust

Where an offender was able to commit an offence by taking advantage of their position of trust, this factor will be treated as aggravating.

Where there is a breach of the public's trust it will be treated as aggravating beyond private breach of trust.[1]

Where the offender held a position of trust in committing the offence the "most important principle" is general deterrence.[2]

An airport baggage handler is in a position of trust when using their position to assist in drug importation.[3]

Relationships of trust will exist in a variety of offences, most typically in sexual offences (particularly child sex offences), fraud/theft offences in employment contexts, and in some drug trafficking or smuggling cases.

There also exists the offences of Breach of Trust (Offence) and Breach of Public Trust (Offence) that create on offence from the act of breaching trust.

  1. ↑ R v Gill, 2003 BCCA 208 (CanLII), per Southin JA (3:0)
    R v Lecourt, 2005 QCCA 845 (CanLII), per curiam
  2. ↑ R v McEachern (1978), 42 CCC (2d) 189 (Ont. C.A.), 1978 CanLII 2506 (ON CA), per Howland CJO, at p. 191 (“the most important principle in sentencing a person who holds a position of trust is that of general deterrence.”)
  3. ↑ see R v Mohamed, 2013 ONCA 704 (CanLII), per curiam

Status of the Victim

See Victims as a Factor in Sentencing

Public Abhorrence of Type of Crime

The public's abhorrence of the type of crime is a factor that enhances the penalties in sentence. Through the principle of denunciation, the courts have an obligation to express the abhorrence of the public of a particular offence such a offences of violence.[1]

  1. ↑ R v WHM, 1994 CanLII 7583 (NS SC), per Kelly J

Prevalence of This Type of Crime in the Community

See also: Judicial Notice

A judge may take some limited judicial notice to the prevalence of certain types of offences within the community.[1] However, doing so has the tendency to create unfairness to both parties.[2]

If the judge is going to rely upon the prevalence of crime in sentencing an offender, he or she should give notice to the parties and an opportunity to reply.[3]

  1. ↑ R v VHM, 2004 NBCA 72 (CanLII), per Ryan JA (3:0) ("When imposing a sentence, a judge should be cautious about relying on the incidence of crime in any area serviced by the judge because of the judge’s particular knowledge of cases coming before the judge or from statistics garnered by the judge from court records for that district")
    R v Trachsel, 2010 SKQB 288 (CanLII), per Gunn J, at paras 18 to 22
  2. ↑ VHM, ibid. ("I ring the bell of caution here because when, figuratively, a judge decides to step down from the bench and infuse into his or her reasons the current experience of the court with an incidence of crime in the community, it injects a body of evidence into the mix that is almost unassailable and, in any event, unfair to the Crown and, more so, to an offender.")
  3. ↑ VHM, ibid. ("it was unfair to take judicial notice of the prevalence of the crime in issue in the county without prior warning to the accused and the Crown")

Degree of Cooperation with Police

State Misconduct

Strength of the Crown's Case

The strength of the Crown's case can be a factor to sentence.[1] But not frequently seen in a disputed sentencing context.

The strength and weaknesses of the Crown's case is a considerable factor considering whether to adopt a joint recommendation.[2] Weaknesses in a case are referred to as "special circumstances" that would warrant a joint recommendation for an exceptional sentence.[3]

The strength of the case is more frequently seen as a factor in whether to deny bail on tertiary grounds.

Where the strength of the case is great, the effect of a guilty plea seems to have a lesser impact.[4]

  1. ↑ e.g. R v DS, 2011 ONSC 3627 (CanLII), per Pierce J, at para 34
    and R v Lonegren, 2009 BCSC 1678 (CanLII), per Barrow J
  2. ↑ R v Oxford, 2010 NLCA 45 (CanLII), per curiam
  3. ↑ R v GWC, 2001 ABCA 41 (CanLII), per Berger JA, at para 5
  4. ↑ e.g. R v Rusk, 2006 ABPC 365 (CanLII), per Hamilton J, at para 38 appealed to 2007 ABCA 189 (CanLII), per Hunt JA
    R v JFK, 2011 ABQB 671 (CanLII), per Eidsvik J, at para 31
    See Sentencing Factors Relating to the Offender#Guilty Plea

Uncharged Criminal Conduct

Offenders are only sentenced “in respect of crimes for which they have been specifically charged and of which they have been validly convicted.”[1] The Crown cannot attempt to seek sentences based on uncharged offences. The Crown must choose what is the most appropriate charge to apply.[2]

Prior uncharged conduct cannot be used as an aggravating factor, however, can be relevant to sentencing as it shows character and background.[3]

Even concurrent uncharged conduct, such as a voyeurism sentencing relating to the filming of a sexual assault, would potentially be unfair to the accused if taken into account at sentence.[4]

However, under section 725(1)(d), "In determining the sentence, a court ... (c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge."

An offender cannot be punished for unproven acts.[5]

  1. ↑ R v Larche, 2006 SCC 56 (CanLII), , [2006] 2 SCR 762, per Fish J
  2. ↑ e.g. see R v GES, 2007 MBCA 105 (CanLII), per MA Monnin JA, at para 13
  3. ↑ R v BM, 2008 ONCA 645 (CanLII), per curiam
  4. ↑ R v Truong, 2013 ABCA 373 (CanLII), per curiam (2:1)
  5. ↑ R v Gardiner, 1982 CanLII 30 (SCC), , [1982] 2 SCR 368, per Dickson J
    R v Lees, 1979 CanLII 43 (SCC), , [1979] 2 SCR 749, per Mclntyre J

Pending Changes to the Law

The expectation that the offence will be decriminalized is irrelevant to sentencing. [1]

  1. ↑ R v Neary, 2017 SKCA 29 (CanLII), per Ottenbreit JA

See Also

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