Sentencing Factors Relating to the Offender

From Criminal Law Notebook

General Principles

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

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".

Distinctions between offender must be relevant to the degree of responsibility before they can be factored into sentencing.[1]

  1. ↑ R v Gerbrandt, 2021 ABCA 346 (CanLII), per curiam, at para 85
    R v Roberts, 2020 ABCA 434 (CanLII), Alta. L.R. (7th) 255, per curiam, at paras 42 to 47
    R v Ford, 2019 ABCA 87 (CanLII), 371 CCC (3d) 250, per curiam
    R v Costello, 2019 ABCA 104 (CanLII), [2019] AJ No 334, per curiam, at para 8
    R v Miller, 2018 ABCA 356 (CanLII), 2018] AJ No 1263, per curiam (2:1), at paras 13 to 17
    R v Fuller, 2017 ABCA 361 (CanLII), 60 Alta LR (6th) 219, per curiam, at para 7
    R v Maier, 2015 ABCA 59 (CanLII), 599 AR 44, per curiam (2:1), at para 31
    R v Murphy, 2014 ABCA 409 (CanLII), 317 CCC (3d) 314, per curiam
    R v Lausberg, 2013 ABCA 72 (CanLII), 544 AR 56, per McDonald J, at para 23
    R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 12
    R v Virani, 2012 ABCA 155 (CanLII), 545 WAC 328, per curiam, at para 16
    R v Ramsay, 2012 ABCA 257 (CanLII), 292 CCC (3d) 400, per curiam, at paras 15 to 34
    R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam, at paras 8 to 10
    R v Belcourt, 2010 ABCA 319 (CanLII), 490 AR 224, per Slatter JA (2:1), at para 8
    R v B(TL), 2007 ABCA 61 (CanLII), 218 CCC (3d) 11, per Fraser CJ, at para 25
    R v Gibbon, 2007 ABCA 300 (CanLII), 417 AR 37, per Costigan JA, at para 12
    R v Diebel, 2007 ABCA 418 (CanLII), per curiam, at paras 16 to 23

Criminal Record

See also: Effect of Criminal Records in Sentencing, Notice of Increased Penalty#Proving Prior Record, and Jump, Step and Gap Principles‎

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.[1]

Likewise, the principle of restraint is a prominent factor for young offenders.[2]

Youthfulness as a factor is of primary importance for first time offenders.[3] 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."[4]

Where not otherwise required, a judge sentencing of a youthful offender should put more weight on rehabilitation over general deterrence.[5]

The objectives for youthful first offenders should primarily be on rehabilitation and specific deterrence.[6]

The "length of a penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence."[7]

For an older accused, age can factor against rehabilitation and reform.[8]

At a certain age there is a recognized category of offender for which imprisonment would be considered "pointless or an unreasonable burden."[9] 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.[10]

Maturity of Adults

The naivete and immaturity are valid mitigating factors affecting culpability.[11]

Advanced Age Offenders

An offender of advanced age can "in some circumstances" be considered a mitigating feature.[12] 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.[13]

  1. ↑ eg see R v Kunzig, 2011 MBPC 81 (CanLII), per MJ Smith J, at para 54
    R v Scott, 2015 ABCA 99 (CanLII), 599 AR 182, per curiam (3:0), at para 13
    R v Jackson, 2002 CanLII 41524 (ON CA), 163 CCC (3d) 451, per Sharpe JA (3:0)
  2. ↑ See: R v Demeter and Whitmore, 1976 CanLII 1413 (ON CA), 32 CCC (2d) 379, per Dubin JA
  3. ↑ Demeter and Whitmore, ibid.
    R v Ijam, 2007 ONCA 597 (CanLII), 226 CCC (3d) 376, per MacPherson JA, at paras 55 to 56, 87 OR (3d) 81
    R v Hussey, 1990 CanLII 6491 (NL CA), , 83 Nfld & PEIR 161 (Nfld CA), per Gushue JA (3:0)
    Scott, supra, at para 13
  4. ↑ Scott, supra, at para 13
    R v Quesnel, 1984 CanLII 3475 (ON CA), 14 CCC (3d) 254, per Thorson JA, at p. 255 (CCC)
  5. ↑ R v Turner, 1970 CanLII 522 (ON CA), 1 CCC (2d) 293 (ONCA), per Haines J
  6. ↑ R v Priest, 1996 CanLII 1381 (ON CA), [1996] OJ No 3369 (CA), per Rosenberg JA (3:0)
    R v Nassri, 2015 ONCA 316 (CanLII), 125 OR (3d) 578, per Sharpe JA (3:0), at para 30
  7. ↑ R v Borde, 2003 CanLII 4187 (ON CA), 63 OR (3d) 417, per Rosenberg JA (3:0), at para 36
  8. ↑ e.g. R v Wiens, 2013 ABPC 15 (CanLII), 551 AR 195, per Pharo J, at para 32
  9. ↑ R v Cromwell, 2006 ABCA 365 (CanLII), 214 CCC (3d) 502, per O’Brien JA, at para 16
    R v Nezic, [1976] BCJ No 1154 (CA)(*no CanLII links) - 77 year old offender in poor health
    see also R v Schmitt, 2014 ABCA 105 (CanLII), per curiam (3:0)
  10. ↑ e.g. R v Bulleyment, 1979 CanLII 2922 (ON CA), 46 CCC (2d) 429, per Martin JA
    R v Odgers, 2006 ABPC 163 (CanLII), 400 AR 322, per JDB McDonald J, at para 29
  11. ↑ R v McLean, 2016 SKCA 93 (CanLII), 132 WCB (2d) 96, per Ottenbreit JA
    see also R v Vandenbosch, 2007 MBCA 113 (CanLII), per Chartier JA, at para 95
  12. ↑ R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 74
  13. ↑ Walker, ibid., at para 74
    R v AR, 1994 CanLII 4524 (MB CA), [1994] MJ No 89, 92 Man R (2d) 183 (CA), per Twaddle JA

Employment

In general, a good work history is mitigating as it indicates a prior good character.[1]

The offender's "opportunity for employment" is an important factor to determine if there is a "reasonable prospect for rehabilitation."[2]

A judge may take judicial notice that a first-time offender receiving a criminal conviction will negatively impact their future in various ways including employment and travel.[3]

  1. ↑ R v Johnston, 2011 NLCA 56 (CanLII), 274 CCC (3d) 388, per White JA (3:0), at para 21
  2. ↑ R v Hunt, 2012 NLCA 5 (CanLII), 100 WCB (2d) 602, per Barry JA (3:0), at para 19
  3. ↑ R v Edmunds, 2012 NLCA 26 (CanLII), 288 CCC (3d) 164, per White JA, at para 20

Professionals

See also: Offences of Violence by Persons in Authority (Sentencing) and Assaults Relating to Persons in Authority (Sentencing Cases)

Peace Officers

Objectives of Sentencing

Breach of trust offences committed by peace officers must emphasize denunciation and deterrence.[1]

Duties and Institutional Importance

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.[2]

Police officer offenders who commit a breach of trust will be subject to "severe sentences" absent exceptional mitigating factors.[3]

The administration of justice “depend[s] on the fidelity and honesty of the police”.[4]

All persons working in the justice system "owe a duty to the public to uphold the values of that system."[5]

Breach of Trust

Police officers, as officials discharging public duties, occupy a special position of trust in the community.[6] The commission of an offence while acting as a peace officer will generally be treated as a breach of trust offence.[7]

Special Status

Police powers give them access to "places and situations" that ordinary persons do not experience. In those circumstances they can commit offences without raising suspicions.[8]

Gravity of Penalties

Absent exceptional mitigating factors, a peace officer who commits a criminal offences should receive more severe sentences than those of regular citizens.[9]

Serving a Jail Sentence

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.[10]


  1. ↑ Cook, supra at para 38
    R v Cusack, 1978 CanLII 2283 (NS CA), per Hart JA ("If one unbundles the several principles that come into play in shaping a fit sentence for conduct by an on-duty police officer amounting to criminal breach of trust under s. 122, general deterrence and denunciation overshadow all others. Those principles command more than lip service; they must impact upon the sentencing process and help shape its outcome.")
    see also s. 718.2(a)(iii) of the Code
  2. ↑ R v Hansen, 2016 ONSC 3583 (CanLII), 30 CR (7th) 117, per Braid J, at paras 28 to 29
    R v Schertzer, 2015 ONCA 259 (CanLII), 325 CCC (3d) 202, per Benotto JA, at paras 134 to 136 - re "special duty"
  3. ↑ Hansen, supra, at para 28
    R v Cook, 2010 ONSC 5016 (CanLII), OJ No 4414, per Hill J
    R v Rudge, 2014 ONSC 241 (CanLII), OJ No 113, per Hambly J
    R v Leblanc, 2003 NBCA 75 (CanLII), 180 CCC (3d) 265, per Drapeau CJ
  4. ↑ McClure, supra, at 200
  5. ↑ R v Cook, 2010 ONSC 5016 (CanLII), per Hill J, at para 29
    R v Feeney et al., 2008 ONCA 756 (CanLII), 238 CCC (3d) 49, per curiam, at para 5
    Hill v Hamilton Wentworth, 2007 SCC 41 (CanLII), , per Charron J, at para 116 in dissent “[p]olice officers are the main actors who have been entrusted to fulfil this important function” of upholding the law.
  6. ↑ Cook, supra, at para 29
    R v LeBlanc, 2003 NBCA 75 (CanLII), 180 CCC (3d) 265, per Drapeau CJ, at para 32
    R. v. McClure (1957), 118 CCC (3d) 192 (Man. C.A.) at 200
    R v Berntson, 2000 SKCA 47 (CanLII), 145 CCC (3d) 1, per Tallis JA, at para 24 ("[A] heavy trust and responsibility is placed in the hands of those holding public office or employ")
  7. ↑ e.g. Cook, supra
  8. ↑ Cook, supra, at para 32 (" The police, in the execution of their duties, gain access to places and situations which the ordinary person does not experience: ... In such situations, an officer may be in a position “where he can commit offences without arousing suspicions”: ... For example, where a police officer victimizes a drug dealer, “the offender is likely to escape scot-free”:")
    LeBlanc at para 27 ("Police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts them to resist the temptation and relies upon the courts to deal firmly with those who stray.")
  9. ↑ Cook, supra at para 38
    Cusack, supra at 2
    R v Gabruch, 2016 ABPC 16 (CanLII), per Fraser J, at para 9
    R v Bal, 2013 BCPC 21 (CanLII), at para 95
  10. ↑ Cook, supra, at para 43 ("Because an inmate who is known to be, or discoverable as, a former police officer is at risk from general population prisoners, such an offender will almost inevitably serve much or all of the sentence in protective custody. This reality, involving as it does more limited social contact and institutional amenities, ordinarily warrants consideration in mitigation of punishment.")
    Rudge, supra, at para 23

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.[1]

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.[2]

  1. ↑ R v Ambrose, 2000 ABCA 264 (CanLII), 234 WAC 161, per Cote JA (2:1), at para 37
  2. ↑ R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183, per Lamer J (5:3), at para 23

Degree of Remorse and Attitude

Remorse is a mitigating factor.[1] 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.[2]

The courts should have "restraint...for persons who spontaneously acknowledge their culpability, have genuine remorse and seek voluntarily to make reparations."[3]

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.[4] Only in exceptional circumstances can the lack of remorse be taken as aggravating.[5]

Remorse is a "one-way street" and can only have the effect of providing reduction to sentence.[6]

An offender who "continues to maintain his innocence" cannot be found by that fact alone to lack "remorse or insight."[7]

Strong Case

Remorse has little importance when the case is so strong that "guilt is inevitable."[8]

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."[9]

Mistake of Law

While not strictly a defence at trial, a mistake of law can be mitigating for sentence. Where the accused honestly but mistakenly believe in the lawfulness of their actions they are therefore less morally blameworthy.[10]

  1. ↑ R v Anderson, 1992 CanLII 6002 (BC C.A.), 74 CCC (3d) 523, per Southin JA and Taylor JA, at pp. 535-536, 16 BCAC 14
    R v Nash, 2009 NBCA 7 (CanLII), 240 CCC (3d) 421, per Robertson JA (3:0), at para 40
    R v Cormier, 1999 CanLII 13118 (NB CA), 140 CCC (3d) 87, per Larlee JA
  2. ↑ See R v Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] 81 OR (3d) 664, 211 CCC (3d) 289, per Laforme JA (3:0), at para 73 ("[his] failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation")
    R v Wowk, 2020 ABCA 119 (CanLII), per curiam, at para 23
    R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, 43 OR (3d) 178, at paras 82 to 83
    See also R v Kozy, 1990 CanLII 2625 (ON CA), 58 CCC (3d) 500, per Carthy JA (3:0), at pp. 505-506
    R v Anderson, 1992 CanLII 6002 , per Southin JA, at pp. 535-536
    R v Brown, [1993] OJ No 624 (CA)(*no CanLII links)
    R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, per Rosenberg JA (3:0), at paras 80 to 85
  3. ↑ R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 293
  4. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ
    R v KA, 1999 CanLII 3756 (ON CA), [1999] OJ No 2640, per Rosenberg JA, at para 49
    R v Reid, 2017 ONCA 430 (CanLII), [2017] OJ No 2758, per van Rensburg JA, at para 36
    R v Cormier, 1999 CanLII 13118 (NB CA), 140 CCC (3d) 87, per Larlee JA
    R v S(E), 1997 CanLII 11513 (NB CA), 191 NBR (2d) 3 (CA), per Ryan JA, at para 6
    R v Williams, 2007 CanLII 13949 (ONSC), [2007] OJ No 1604, per Hill J, at para 32
    R v Hawkins, 2011 NSCA 7 (CanLII), 265 CCC (3d) 513, per Beveridge JA, at paras 31 to 34
    see also: R v Henry, 2002 NSCA 33 (CanLII), 164 CCC (3d) 167, per Roscoe JA, at para 21
    R v Zeek, 2004 BCCA 42 (CanLII), 193 BCAC 104, per Rowles JA
  5. ↑ Hawkins, supra, at para 33
    Valentini, supra
  6. ↑ Hawkins, supra
  7. ↑ R v Yau, 2011 ONSC 1009 (CanLII), OJ No 720, per MacDonnell J, at para 27
    see, e.g. R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, per Rosenberg JA
    R v Giroux, 2006 CanLII 10736 (ON CA), 207 CCC (3d) 512, per Blair JA
    R v B(C), 2008 ONCA 486 (CanLII), 78 WCB (2d) 80, per Gillese JA (3:0)
  8. ↑ R v Singh, 2018 ONSC 3850 (CanLII), per Harris J
    R v Faulds, 1994 CanLII 770 (ON CA), , 20 OR (3d) 13, per curiam, at para 14
    R v Daya, 2007 ONCA 693 (CanLII), 227 CCC (3d) 367, per Moldaver and LaForme JJA, at para 15
  9. ↑ R v Sawchyn, 1981 ABCA 173 (CanLII), 124 DLR (3d) 600, per Laycraft JA, at para 34
    R v Nyoni, 2017 BCCA 360 (CanLII), per Newbury JA, at para 8
  10. ↑ R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, at para 64 ("This is because offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who — in committing the same offence — are unsure about the lawfulness of their actions, or know that their actions are unlawful.")

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.[1]

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."[2]

  1. ↑ R v Marchessault, [1984] J.Q. No 686 (QCCA)(*no CanLII links)
    R v Morency, 2012 QCCQ 4556 (CanLII), per Morand J, at para 85
  2. ↑ Morency, supra, at para 86
    Quintin Vézina v R, 2010 QCCA 1457 (CanLII), per curiam
    R v Jeannotte, 2005 CanLII 22771 (QC CQ), [2005] R.J.Q. 2425, per Provost J
    R v Flahiff, 1999 CanLII 10716 (QC CQ), [1999] R.J.Q. 884, per Boisvert J
    R v Harris, [1984] J.Q. No 102 (C.S.P.)(*no CanLII links)

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.[1]

It should still take "secondary role" to denunciation and deterrence in large scale frauds involving breach of trust.[2]

  1. ↑ R v Bogart, 2002 CanLII 41073 (ON CA), 61 OR (3d) 75, per Laskin JA ( “[r]ecognized that the payment of full restitution before sentencing ‘might’ be a ‘special’ circumstance justifying a conditional sentence where a prison sentence is otherwise appropriate.” )
  2. ↑ R v Mathur, 2017 ONCA 403 (CanLII), per Trotter JA

Character

A mitigating factor that may be considered is whether the offence is "out of character."[1]

"Stressors" that "precipitated" the offence rendering the offence "out of character" will have a mitigating effect.[2]

There is some criticism of the mitigating effect of character. All persons are obligated to "obey the law" and should not be used as "credit against punishment" for the commission of an offence.[3] It is also considered an "unprincipled" use of "personal history" evidence.[4]

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.[5]

  1. ↑ R v Shrivastava, 2019 ABQB 663 (CanLII), per Antonio J, at paras 72 to 93
    R v Misay, 2021 ABQB 485 (CanLII), at para 127
  2. ↑ R v McIntosh, 2012 ONCJ 216 (CanLII), OJ No 1772, per Hearn J, at para 38
  3. ↑ Misay, supra, at para 128 ("Justice Antonio also pointed out that obeying the law, an obligation we all bear, cannot be taken to earn credit against punishment for commission of a serious offence")
    Shrivastava, supra, at para 78
  4. ↑ Misay, supra, at para 127
  5. ↑ e.g. R v Malt, 2016 BCPC 322 (CanLII), per Harris J, at para 10

Risk to Re-Offend

The risk that the accused poses to re-offend is a valid factor for sentencing.[1]

A greater the risk to re-offend the more consideration there will be upon a custodial sentence.[2]

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.[3]

  1. ↑ e.g. R v Patton, 2011 ABCA 199 (CanLII), 505 AR 394, per curiam, at para 10
  2. ↑ R v Carelse, 2013 SKQB 15 (CanLII), 411 Sask R 263, per Danyliuk J, at paras 28 to 30
  3. ↑ R v SCW, 2019 BCCA 405 (CanLII), per Goepel JA, at para 26 (" should further note that even if it could be said that the judge erred in not giving weight to the opinion, it would likely have had no impact on the sentence. The fact that an accused is unlikely to re‑offend is not a significant consideration in a case concerning sexual abuse against children when the emphasis is properly based on matters of general deterrence and denunciation")

Post Offence Conduct

Efforts at rehabilitation and career advancement post-offence is a mitigating factor.[1]

Rehabilitation, while the accused has fled to avoid sentencing, is not a mitigating factor.[2]

Post-offence bad behaviour is generally not an aggravating factor.[3] Criminal offences committed after the offence will not be aggravating.[4] 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.[5]

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.[6]

Correctional Records

The disciplinary records of a remanded accused should not generally be used as aggravating to the sentence.[7] But they can be used to rebut assertions of good character as a mitigating factor.[8]

  1. ↑ R v Thompson, 1989 ABCA 212 (CanLII), 98 AR 348, per Côté JA, at para 4
    R v Spina, 1997 ABCA 235 (CanLII), (1997), 200 AR 133, per Conrad JA, at para 18
  2. ↑ Thompson, supra
  3. ↑ R v Klok, 2014 ABPC 102 (CanLII), per Allen J, at paras 79 to 88
    R v S(B), 1994 CanLII 3881 (SK CA), 125 Sask R 303(Sask CA), per curiam, at para 47
  4. ↑ Klok, supra
  5. ↑ Klok, supra, at paras 87 to 88
  6. ↑ R v Gryba, 2016 SKQB 123 (CanLII), SJ No 218, per Popescul CJ, at para 35
    R v Leroux, 2015 SKCA 48 (CanLII), 9 WWR 709, per Caldwell JA, at para 62
    R v Araya, 2015 ONCA 854 (CanLII), 344 OAC 36, per Laskin JA, at para 29
    R v Gwyn, 2009 ABPC 212 (CanLII), per Fradsham J, at para 16
    R v Deren, 2017 ABCA 23 (CanLII), per Rowbotham JA, at para 5
  7. ↑ R v Clarke-McNeil, 2022 NSSC 63 (CanLII), per Campbell J
  8. ↑ Clarke-McNeil, ibid.

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.[1]

Abuse by Victim

The presence of long-term abuse by the victim can be mitigating.[2]

This may be manifested as "battered woman syndrome".[3]

There can be mitigation where the conduct was "impulsive" or an immediate reaction in response to a perceived (or real) wrong by the victim.[4]

  1. ↑ R v DKDB, 2013 BCSC 2321 (CanLII), per Ballance J, at paras 13, 54
    R v BVT, 2016 BCPC 95 (CanLII), per Brecknell J
  2. ↑ R v Dunlap, 1991 CanLII 2519 (NS CA), 101 N.S.R. (2d) 263, per Matthews JA
    R v Drake, [1995] O.J. No. 4375 (Gen. Div.)(*no CanLII links) online: Quicklaw (OJ)
    R v Cormier, 1974 CanLII 1577 (NS CA), 9 NSR (2d) 687, 22 CCC (2d) 235, per Macdonald JA
  3. ↑ R. v. Phillips, [1992] O.J. No. 2716 (Gen. Div.)
    R. v. Bennett, [1993] O.J. No. 1011 (Prov. Div.)
  4. ↑ R v Kipling, 1992 CanLII 13189 (MB CA), 83 Man. R. (2d) 6, per Scott CJ
    R v McLeod (L.S.), 1994 NSCA 151 (CanLII), 132 NSR (2d) 118, per Freeman JA
    R v Whynot, 1996 NSCA 53 (CanLII), 147 NSR (2d) 111, per Pugsley JA

Addiction and Substance Abuse

Substance abuse, by itself, is not ordinarily a mitigating factor.[1] 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.

Refusal to apply mitigation can be justified by the fact the accused has not availed of any treatment programs.[2]

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.[3]

Gambling

Gambling addiction is not generally a mitigating factor.[4] 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.[5]

Addictions and Mental Health

It has been noted that the combination of addiction and mental health make rehabilitation harder.[6]

  1. ↑ R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 10
    cf. see R v Sheppard, 1997 CanLII 14629 (NL CA), 147 Nfld. & PEIR 304, per O'Neill JA
    cf. R v Lane, 2004 NLSCTD 49 (CanLII), [2004] NJ No 95 (S.C.), per LeBlanc J
    cf. R v Breen, 1982 CanLII 3889 (NL CA), 37 Nfld. & PEIR 472, per Gushue JA (“the effect of alcohol or drugs” can be considered as mitigating factors in sentencing, “that consideration is normally confined to cases where the actions of a person are completely out of character. Thus, lenient treatment may be justified in anticipation of rehabilitation")
  2. ↑ R v Sesay, 2020 BCCA 41 (CanLII), at para 38 ("Further, it is not surprising that the appellant’s substance abuse disorder was not treated as a mitigating factor where the appellant, despite his criminal history, has not availed himself of any form of drug or alcohol treatment in the past.")
  3. ↑ R v Warren, 2012 CanLII 54025 (NL PC), per Gorman J, at para 58
  4. ↑ R v Holmes, 1999 ABCA 228 (CanLII), 237 AR 146, per curiam
    cf. R v Wilson, 2012 NSPC 40 (CanLII), 1002 APR 96, per Ross J
  5. ↑ R v Horvath, 1997 CanLII 9759 (SK CA), [1997] SJ No 385, per Bayda CJ
  6. ↑ R v Fuller, 2017 ABCA 361 (CanLII), per curiam, at para 13

Medical Conditions

Generally speaking the existence of medical conditions cannot be use to avoid what is otherwise a fit and proper sentence.[1] If health is being used to avoid a jail sentence there must be some evidence showing that the condition cannot be properly treated in jail.[2]

  1. ↑ R v Bulic, 2020 ONCA 845 (CanLII), per curiam, at para 13
    R v Heron, 2017 ONCA 441 (CanLII), at para 25 ("medical conditions cannot generally be used to avoid what is otherwise a fit and proper sentence")
  2. ↑ R v HS, 2014 ONCA 323 (CanLII), per Epstein JA

Physical Health

Physical disabilities that may make a custodial sentence more difficult can be mitigating.[1] An offender's health condition that is not "life threatening" will not justify a sentence outside the "usual range of sentence" unless there is evidence the condition cannot be treated within the custodial institution.[2]

  1. ↑ R v M T-S, 2023 ONSC 4448 (CanLII), per Gibson J, at para 27
  2. ↑ M T-S, ibid., at para 28
    R v LaCombe, 2023 ONSC 1975 (CanLII), per Dawson J, at para 36
    R v HS, 2014 ONCA 323 (CanLII), at paras 37 to 38

Mental Health

Mental health can be a mitigating factor to sentence even where it is not so severe to remove criminal responsibility.[1]

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 severe because of the offender's condition.[2]

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.[3]

The offender must show that a lengthy sentence would have a "severe negative effect on the offender such that it should be reduced on compassionate grounds."[4]

Causal Connection

Generally, for a mental illness is to be considered mitigating, the offender must show that there is a causal link between the condition and the criminal conduct.[5]

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. [6] This is also true where the offender was not suffering from delusions at the time.[7] It is sufficient that the illness contributed in some way to the offence.[8] 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.[9]

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."[10]

Incarceration

Treatment in the community is generally preferred over incarceration.[11] However, this is less so for serious offences.[12]

Mental illness is often considered a basis to order treatment and supervision over punishment.[13]

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.[14]

Where mental health plays "a central role in the commission of the offence ... deterrence and punishment assume less importance."[15]

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.[16] Mental illness reduces the importance of denunciation and deterrence and increases the importance of treatment. This includes situations where rehabilitation or cure is impossible.[17]

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.[18]

The mental condition will attenuate the relative importance of deterrence and denunciation.[19]

Degree of Responsibility

A mental illness diminishes the offender’s degree of responsibility.[20]

Impact of Jail

Incarceration of persons with mental health issues can create a disproportionate impact upon them, which can be a mitigating factor.[21]

An Offenders mental illness can make a jail sentence more severe.[22]

While it has also been observed that the managing of mental health issues and other medical factors are best handled by correctional authorities who are obligated to provide essential health care including mental health care.[23]

It is recognized that it is "difficult" to predict the mental health condition of persons in custody.[24]

Cognitive Deficits

Diminished intellectual capacity is not a mitigating factor warranting a lesser sentence.[25]

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.[26]

Systemic failures to treat the offender's mental health are mitigating factors.[27]

Other Conditions

There has been some reference to PTSD being a mitigating condition.[28]

  1. ↑ R v Peters, 2000 NFCA 55 (CanLII), 194 Nfld. & PEIR 184 (NLCA), per Green JA, (“the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort that would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence.”)
  2. ↑ R v Belcourt, 2010 ABCA 319 (CanLII), 490 AR 224, per Slatter JA (2:1), at para 8
  3. ↑ R v Lausberg, 2013 ABCA 72 (CanLII), 544 AR 56, per McDonald JA - Sentencing judge erred by considering the emotional state as being a mental health problem
  4. ↑ R v Prioriello, 2012 ONCA 63 (CanLII), 288 OAC 198, per O'Connor J, at para 12
  5. ↑ Prioriello, ibid., at para 11 ("In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct")
    R v Robinson, [1974] O.J. No. 585 (C.A.)(*no CanLII links)
  6. ↑ R v Ayorech, 2012 ABCA 82 (CanLII), [2012] AJ No 236, per curiam, at para 10 (“mental disorders, particularly schizophrenia, can significantly mitigate a sentence, even if the evidence does not disclose that the mental illness was the direct cause of the offence or that it was carried out during a period of delusions, hallucinations, or such.”)
  7. ↑ R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam (3:0)
    Ayorech, ibid.
  8. ↑ Belcourt, supra
  9. ↑ R v Shahnawaz, 2000 CanLII 16973 (ON CA), 149 CCC 97, per Charron JA
  10. ↑ R v Hagendorf, 2000 CarswellOnt 5245 (S.C.)(*no CanLII links) , per Durno J, at para 50
  11. ↑ R v Lundrigan, 2012 NLCA 43 (CanLII), [2012] NJ No 231 (NLCA), per Rowe JA, at para 20
  12. ↑ see R v JM, [2008] NJ No 262 (P.C.)(*no CanLII links)
    R v Taylor, 2012 CanLII 42053 (NLPC), [2012] NJ No 251 (P.C.), per Mennie J
  13. ↑ see R v Valiquette, 1990 CanLII 3048, 60 CCC (3d) 325, per Rothman JA, at p. 331 (“most people understand that the mentally ill require treatment and supervision, not punishment”)
  14. ↑ Belcourt, supra, at para 8
  15. ↑ R v Batisse, 2009 ONCA 114 (CanLII), 241 CCC (3d) 491, per Gillese JA
  16. ↑ R v Lockyer, 2000 NLCA 59 (CanLII), [2000] NJ No 306, per Roberts JA (2:1)
  17. ↑ R v Hiltermann, [1993] AJ No 609 (CA)(*no CanLII links) , at paras 4-8
  18. ↑ R v Newby, 1991 ABCA 307 (CanLII), 84 Alta LR (2d) 127, per Foisy JA
    R v Rhyno, 2009 NSCA 108 (CanLII), 900 APR 246, per Oland JA
    R v Dickson, 2007 BCCA 561 (CanLII), 228 CCC (3d) 450, per Finch CJ (3:0)
  19. ↑ R v Tremblay, 2006 ABCA 252 (CanLII), 401 AR 9, per Martin JA, at para 7
    R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam (3:0), at para 14
  20. ↑ R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 12
    R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam, at paras 9 to 10, 16
    Belcourt, supra, at paras 7 to 8
    R v Muldoon, 2006 ABCA 321 (CanLII), 213 CCC (3d) 468, per curiam (3:0), at paras 9 to 10
  21. ↑ Newby, supra
    Ayorech, supra
  22. ↑ Ayorech, supra at 13 (“Ayorech’s mental disorders have left him vulnerable, such that Dr. Santana opined that he ‘was ill equipped to survive in the prison system.’")
  23. ↑ R v CF, 2020 ONSC 5975 (CanLII), per Leibovich J, at para 57
    R v Shahnawaz, 2000 CanLII 16973 (ON CA), 149 CCC (3d) 97, per Charron JA (2:1), at paras 30 to 34
    Prioriello, supra
  24. ↑ Shahnawaz, ibid., at para 34
  25. ↑ R v H(MJ), 2004 SKCA 171 (CanLII), 257 Sask R 1, per Richards JA (3:0)
  26. ↑ R v Ramsay, 2012 ABCA 257 (CanLII), 292 CCC (3d) 400, per curiam (3:0)
  27. ↑ R v Adamo, 2013 MBQB 225 (CanLII), per Suche J
    Ayorech, supra
  28. ↑ R v Walendzewicz, 2020 ONSC 57 (CanLII), at para 37

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."[1]


There mere existence of cultural or customary differences between the accused's culture and Canadian norms cannot be used as an excuse or as mitigation.[2] To do otherwise creates a problem that new immigrants will not recieve "true protection" of the law.[3]

A lack of facility with English has been treated as mitigating in certain circumstances.[4]

  1. ↑ R v Borde, 2003 CanLII 4187 (ON CA), 172 CCC (3d) 225, per Rosenberg JA
    R v Rage, 2018 ONCA 211 (CanLII), per curiam (3:0), at para 13
  2. ↑ R v E(H), 2015 ONCA 531 (CanLII), 336 OAC 363, per Benotto JA, at para 33
    R v Brown, 1992 CanLII 2829 (AB CA), 73 CCC (3d) 242, per curiam re offences of violence or sexual violence
  3. ↑ R v Teclesenbet, 2009 ABCA 389 (CanLII), 469 AR 193, per McDonald JA, at para 9
  4. ↑ R v Huang, [2005] OJ No 1855 (SCJ)(*no CanLII links) , at para 21
    R v Shaliwal, [2011] MJ No 213(Q.B.)(*no CanLII links) , at para 41
    R v Lim, [1990] OJ No 949 (H.C.J.)(*no CanLII links) , per Doherty J
    R v JWS, 2013 NSPC 7 (CanLII), per Derrick J, at para 41

Sympathy and Compassion

The court may allow for a degree of leniency for sympathetic or compassionate offenders.[1] 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. [2] However, simply poor health or age is not usually a reason on its own.[3]

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."[4]

  1. ↑ R v Voutsis, 1989 CanLII 4477 (SK CA), 47 CCC 451 (Sask. CA), per Cameron JA
  2. ↑ R v Michel, 1996 CanLII 8363 (BCCA), 133 WAC 237 (BCCA), per Proudfoot JA
  3. ↑ R v Shah, 1994 CanLII 1290 (1994), 94 CCC 45, per Finch JA (2:1)
    R v Maczynski, 1997 CanLII 2491 (BCCA), 120 CCC 221, per Lambert JA
    R v FDM (1995), 29 WBC 148 (AltaCA)(*no CanLII links)
  4. ↑ R v Schmitt, 2014 ABCA 105 (CanLII), per curiam (3:0), at para 11

Effect on Family and Others

The effect of incarceration upon the accused family may sometimes be a factor.[1]

The impact on family cannot override other factors.[2]

  1. ↑ R v Schmitt, 2014 ABCA 105 (CanLII), per curiam (3:0)
  2. ↑ Schmitt, ibid.

Effect on Immigration

See also: Immigration Consequences from a Conviction

Section 64 of the Immigration and Refugee Protection Act states:

No appeal for inadmissibility

64(1) 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.

Serious criminality

64(2) 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. [1] It must be weighed and considered with all other factors and circumstances of the case.[2] However, it should not bring the sentence out of the appropriate range.[3] However, the factor is a discretionary one.[4]

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."[5]

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.[6]

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.[7]

The effect of an offender's immigration status on the likelihood of day parole is not a factor in sentence.[8]

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.[9] The sentencing approach must not create a separate sentencing scheme for those at risk of deportation.[10]

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.[11]

Children

The judge may consider the impact of deportation on the offender's dependent children as mitigation.[12]

Counsel's Failure to Raise Immigration Status

A failure of counsel to raise the issue of immigration effect can by grounds of appellate intervention.[13]

  1. ↑ R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739, per Wagner J (7:0)
    R v Hamilton, 2004 CanLII 5549 (ON CA), 72 OR (3d) 1, per Doherty JA (3:0), at paras 156, 159, and 186
    R v Barkza, 2011 ABCA 273 (CanLII), 530 WAC 333, per Rowbotham JA (3:0)
    R v Dhura, 2011 ABCA 165 (CanLII), 505 AR 248, per Watson JA (3:0)
    R v Koc, 2008 NLTD 97 (CanLII), [2008] NJ No 161 (N.L.S.C.T.D.), per Goulding J
    R v Melo, 1975 CanLII 1299 (ON CA), 26 CCC (2d) 510, per Arnup JA, at p. 516 (Ont. C.A.)
  2. ↑ R v BRC, [2010] OJ No 3571(*no CanLII links) at 6
    R v Melo, 1975 CanLII 1299 (ON CA), 26 CCC (2d) 510, per Arnup JA (3:0), at p. 516
    Pham, supra, at paras 20 to 22
  3. ↑ R v Morgan, 2008 NWTCA 12 (CanLII), 239 CCC (3d) 187, per curiam
    R v Belenky, 2010 ABCA 98 (CanLII), 253 CCC (3d) 344, per McDonald JA (3:0), at para 20 ("the collateral consequence of deportation can be given at most very limited weight. It cannot by itself remove a sentence from what would otherwise be the appropriate range. At most it can serve to move the sentence a small amount, nothing more.")
  4. ↑ Pham, supra
  5. ↑ Pham, supra
  6. ↑ R v Lopez-Orellana, 2018 ABCA 35 (CanLII), per curiam (3:0) , at para 24
  7. ↑ R v Dzabic, 2008 CanLII 53860 (ONSC), per DiTomaso J
  8. ↑ R v Razmara, 2012 ONCA 13 (CanLII), per curiam (3:0)
  9. ↑ R v Spencer, 2015 NSCA 108 (CanLII), 367 NSR (2d) 246, per MacDonald CJ, at para 8
    Pham, supra, at para 16 ("These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.")
  10. ↑ Pham, supra, at para 16 ("Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.")
  11. ↑ R v Kanthasamy, 2005 BCCA 135 (CanLII), 195 CCC (3d) 182, per Donald JA (3:0), at para 15
  12. ↑ R v Gaurino, 2017 ONSC 4174 (CanLII), per Warkentin J
    R v Jiang, 2017 BCPC 111 (CanLII), per Rideout J
    R v Gomez, 2017 BCPC 7 (CanLII), per Rideout J
  13. ↑ Pham, supra, at para 24
    R v Tmenov, 2017 ONCA 454 (CanLII), per curiam (3:0)
    R v Jamieson, 2011 NSCA 122 (CanLII), 983 APR 392, per Saunders JA

"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."[1]

They do not go to considerations of aggravating or mitigating factors, nor the gravity of the offence or moral blameworthiness of the offender.[2]

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".[3]

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.[4] They are relevant to sentencing as part of the considerations for individiualization and parity.[5]

When It can be Mitigating

The consequence does not need to "emanate from state misconduct" for it to be mitigating.[6]

After mitigating effects arising from collateral consequences are applied the sentence must still conform with the principle of proportionality.[7]

Stigma of the Offence

Stigma arising from the offence cannot be used as a mitigating factor when it is in line with what is expected from someone facing the same charges.[8]

  1. ↑ R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, per Moldaver J (6:1), at para 47
  2. ↑ Suter, ibid., at para 48 ("...collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2(a) of the Criminal Code...The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious...")
  3. ↑ Suter, ibid., at para 48
  4. ↑ Suter, supra, at paras 45 to 59
    R v Pham, 2013 SCC 15 (CanLII), [2013] 1 SCR 739, per Wagner J, , at para 11
  5. ↑ Suter, supra, at para 48 ("The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity")
  6. ↑ Suter, supra, at para 56
  7. ↑ Suter, supra, at para 56
  8. ↑ R v HS, 2014 ONCA 323 (CanLII), per Epstein JA

Victimization of Accused During Proceedings

An incarcerated offender who is attacked by fellow inmates can be taken as a collateral factor.[1]

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.[2]

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.[3] Such violence should only be considered to a "limited extent."[4]

  1. ↑ R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, per Moldaver J (6:1), at para 51
    R v MacFarlane, 2012 ONCA 82 (CanLII), 288 OAC 114, per curiam, at para 3
  2. ↑ R v Summers, 2014 SCC 26 (CanLII), [2014] 1 SCR 575, per Karakatsanis J, at para 73("individuals who have suffered particularly harsh treatments, such as assaults in detention, can often look to other remedies, including under s 24(1) of the Charter")
  3. ↑ Suter, supra, at para 58
  4. ↑ Sutder, supra, at para 59

Aboriginal Background

See Aboriginal Sentencing Principles and Factors

During Proceedings

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