Sentencing Factors Relating to the Offender

From Criminal Law Notebook

General Principles

See also: Sentencing Factors Relating to the Offence

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".

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]

Advanced Age Offenders
An offender of advanced age can "in some circumstances" be considered a mitigating feature.[11] 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.[12]

  1. ↑ eg see R v Kunzig, 2011 MBPC 81 (CanLII) at para 54
    R v Scott, 2015 ABCA 99 (CanLII) at para 13
    R v Jackson (2002), 2002 CanLII 41524 (ON CA), 163 CCC (3d) 451 (Ont CA)
  2. ↑ See: R v Demeter and Whitmore (1976), 32 CCC (2d) 379 (Ont. C.A.), 1976 CanLII 1413 (ON CA), per Dubin JA
  3. ↑ Demeter and Whitmore, ibid.
    R v Ijam, 2007 ONCA 597 (CanLII) at paras 55-6, 87 OR (3d) 81
    R v Hussey (1990), 1990 CanLII 6491 (NL CA), 83 Nfld & PEIR 161 (Nfld CA)
    Scott at para 13
  4. ↑ Scott at para 13
    R v Quesnel (1984), 14 CCC (3d) 254 at p. 255, 1984 CanLII 3475 (ON CA), per Thorson JA
  5. ↑ R v Turner (1970), 1 CCC (2d) 293 (ONCA), 1970 CanLII 522 (ON CA), per Haines J
  6. ↑ R v Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 (C.A.)
    R v Nassri, 2015 ONCA 316 (CanLII), at para 30
  7. ↑ R v Borde 2003 CanLII 4187 (ON CA), (2003), 63 O.R. (3d) 417, at para 36
  8. ↑ e.g. R v Wiens, 2013 ABPC 15 (CanLII) at para 32
  9. ↑ R v Cromwell, 2006 ABCA 365 (CanLII), 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)
  10. ↑ e.g. R v Bulleyment 1979 CarswellOnt 1325, 46 CCC (2d) 429, 1979 CanLII 2922 (ON CA), per Martin JA
    R v Odgers, 2006 ABPC 163 (CanLII) at para 29
  11. ↑ R v Walker, 2016 ABQB 695 (CanLII) at para 74
  12. ↑ Walker, ibid. at para 74
    R v AR, 1994 CanLII 4524 (MB CA), [1994] MJ No 89, 92 Man R (2d) 183 (CA)

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]

  1. ↑ R v Johnston, 2011 NLCA 56 (CanLII) at para 21
  2. ↑ R v Hunt, 2012 NLCA 5 (CanLII) at para 19

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.[1]

Police officer offenders who commit a breach of trust will be subject to "severe sentences" absent exceptional mitigating factors.[2]

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.[3]

  1. ↑ R v Hansen, 2016 ONSC 3583 (CanLII), per Braid J, at paras 28 to 29
    R v Schertzer, 2015 ONCA 259 (CanLII), per Benotto JA, at para 134 to 136 - re "special duty"
  2. ↑ Hansen at para 28
    R v Cook, 2010 ONSC 5016 (CanLII), per Hill J
    R v Rudge, 2014 ONSC 241 (CanLII), per Hambly J
    R v Leblanc, 2003 NBCA 75 (CanLII), per Drapeau CJ
  3. ↑ 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) at para 37
  2. ↑ R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183 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]

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".[8]

  1. ↑ R v Anderson 1992 CanLII 6002 (BC C.A.), (1992), 74 CCC (3d) 523, at p. 535-536, 16 BCAC 14
    R v Nash, 2009 NBCA 7 (CanLII), (2009), 240 CCC (3d) 421 (N.B.C.A.) at para 40
    R v Cormier, 1999 CanLII 13118 (NB CA), (1999), 140 CCC (3d) 87 (N.B.C.A.)
  2. ↑ See LaForme J.A. in R v Kakekagamick, 2006 CanLII 28549 (ON C.A.), [2006] 81 O.R. (3d) 664, 211 CCC (3d) 289 (C.A.), at para 73 ("[his] failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation")
    See also R v Kozy 1990 CanLII 2625 (ON CA), (1990), 58 CCC (3d) 500 (Ont.C.A.) at pp. 505-506
    R v Anderson 1992 CanLII 6002 (BC CA), (1992), 74 CCC (3d) 523 (BCCA) at pp. 535-536
    R v Brown, [1993] O.J. No. 624 (C.A.)(*no CanLII links)
    R v Valentini 1999 CanLII 1885 (ON CA), (1999), 132 CCC (3d) 262 (Ont.C.A.) at para 80-85
  3. ↑ R v Arcand 2010 ABCA 363 (CanLII) at para 293
  4. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61
    R v KA, [1999] O.J. No. 2640 (Ont. C.A.), 1999 CanLII 3756 (ON CA), per Rosenberg JA at para. 49
    R v Reid, 2017 ONCA 430 (CanLII), [2017] O.J. No. 2758, at para. 36
    R v Cormier, 1999 CanLII 13118 (NB CA), (1999), 140 CCC (3d) 87 (N.B.C.A.)
    R v S.(E.), 1997 CanLII 11513 (NB CA), (1997), 191 N.B.R. (2d) 3 (C.A.), per Ryan J.A. at para 6
    R v Williams, [2007] OJ No. 1604, 2007 CanLII 13949 (ON SC) at para 32
    Hawkins, supra at para 31 to 34
    see also: R v Henry 2002 NSCA 33 (CanLII) at para 21
    R v Zeek, 2004 BCCA 42 (CanLII)
  5. ↑ R v Hawkins, 2011 NSCA 7 (CanLII) at para 33
    Valentini, supra
  6. ↑ R v Hawkins, supra
  7. ↑ R v Yau, 2011 ONSC 1009 (CanLII), at para 27
    see, e.g. R v Valentini, 1999 CanLII 1885 (ON CA), (1999), 132 CCC (3d) 262 (Ont. C.A.)
    R v Giroux, 2006 CanLII 10736 (ON CA), (2006), 207 CCC (3d) 512 (Ont. C.A.)
    R v B. (C.), 2008 ONCA 486 (CanLII)
  8. ↑ R v Sawchyn (1981) 1981 ABCA 173 (CanLII), 124 D.L.R. (3d) 600 (Alta C.A.) at para 34
    R v Nyoni, 2017 BCCA 360 (CanLII) at para 8

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. c. Morency, 2012 QCCQ 4556 (CanLII), 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
    R. v. Flahiff, 1999 CanLII 10716 (QC CQ), [1999] R.J.Q. 884
    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), 2002 CanLII 41073 (ON CA), 61 O.R. (3d) 75 (C.A.) per Laskin J.A. ( “[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".

"Stressors" that "precipitated" the offence rendering the offence "out of character" will have a mitigating effect.[1]

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.[2]

  1. ↑ R v McIntosh, 2012 ONCJ 216 (CanLII) at para 38
  2. ↑ e.g. R v Malt, 2016 BCPC 322 (CanLII) at para 10 per Harris PCJ

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]

  1. ↑ e.g. R v Patton, 2011 ABCA 199 (CanLII), at para 10
  2. ↑ R v Carelse, 2013 SKQB 15 (CanLII), at para 28 to 30

Post Offence Conduct

Efforts at rehabilitation and carerr 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 a 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]

  1. ↑ R v Thompson, 1989 ABCA 212 (CanLII), (1989), 98 A.R. 348 (Alta. C.A.) at para 4
    R v Spina (1997), 200 A.R. 133 (Alta. C.A.) at para 18
  2. ↑ Thompson, supra
  3. ↑ R v Klok, 2014 ABPC 102 (CanLII), at paras 79 to 88
    R v S.(B), 1994 CanLII 3881 (SK CA), (1994), 125 Sask. R. 303(Sask. C.A.) at para 47
  4. ↑ Klok, supra
  5. ↑ Klok, supra at paras 87 to 88
  6. ↑ R v Gryba, 2016 SKQB 123 (CanLII) at para 35
    R v Leroux, 2015 SKCA 48 (CanLII) at para 62
    R v Araya, 2015 ONCA 854 (CanLII) at para 29
    R v Gwyn, 2009 ABPC 212 (CanLII) at para 16
    R v Deren, 2017 ABCA 23 (CanLII) at para 5

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.

Gambling addiction is not generally a mitigating factor.[2] 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.[3]

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.[4]

  1. ↑ R v Ayorech, 2012 ABCA 82 (CanLII) at para 10
  2. ↑ R v Holmes 1999 ABCA 228 (CanLII)
    c.f. R v Wilson, 2012 NSPC 40 (CanLII)
  3. ↑ R v Horvath, 1997 CanLII 9759 (SK CA), [1997] S.J. No. 385
  4. ↑ R v Warren, 2012 CanLII 54025 (NL PC) at para 58

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 sever 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]

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. [4] This is also true where the offender was not suffering from delusions at the time.[5] It is sufficient that the illness contributed in some way to the offence.[6] 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.[7]

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."[8]

Incarceration
Treatment in the community is generally preferred over incarceration.[9] However, this is less so for serious offences.[10]

Mental illness is often considered a basis to order treatment and supervision over punishment.[11]

Deterrence and Denunciation
General deterrence should be given "very little, if any, weight" since it is not appropriate manner of making an example to others.[12]

Where mental health plays "a central role in the commission of the offence ... deterrence and punishment assume less importance".[13]

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.[14] Mental illness reduces the importance of denunciation and deterrence and increases the importance of treatment. This includes situations where rehabilitation or cure is impossible.[15]

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.[16]

The mental condition will attenuate the relative importance of deterrence and denunciation.[17]

Degree of Responsibility
A mental illness diminishes the offender’s degree of responsibility.[18]

Impact of Jail
Incarceration of persons with mental health issues can create a disproportionate impact upon them, which can be a mitigating factor.[19]

An Offenders mental illness can make a jail sentence more severe.[20]

Cognitive Deficits
Diminished intellectual capacity is not a mitigating factor warranting a lesser sentence.[21]

The cognitive deficit from Fetal Alcohol Spectrum Disorder (FASD) result in limited restraints as well as appreciation of the immorality of their actions. This reduces the impact on deterrence and denunciation and increases the mitigation on sentence.[22]

Systemic failures to treat the offender's mental health are mitigating factors.[23]

  1. ↑ R v Peters 2000 NFCA 55 (CanLII), (2000), 194 Nfld. & P.E.I.R. 184 (NLCA), (“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) at para 8
  3. ↑ R v Lausberg, 2013 ABCA 72 (CanLII), 544 A.R. 56 (Alta. C.A.) - Sentencing judge erred by considering emotional state as being a mental health problem
  4. ↑ R v Ayorech, [2012] A.J. No. 236, 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.”)
  5. ↑ R v Resler, 2011 ABCA 167 (CanLII)
    R v Ayorech, 2012 ABCA 82 (CanLII)
  6. ↑ Belcourt, supra
  7. ↑ R v Shahnawaz, 2000 CanLII 16973, (2000), 149 CCC 97 (Ont.CA)
  8. ↑ R v Hagendorf, 2000 CarswellOnt 5245 (S.C.) per Durno J. at para 50
  9. ↑ R v Lundrigan, 2012 NLCA 43 (CanLII), [2012] NJ No 231 (NLCA) at para 20
  10. ↑ see R v J.M., [2008] N.J. No. 262 (P.C.)
    R v Taylor, 2012 CanLII 42053 (NL PC), [2012] N.J. No. 251 (P.C.)
  11. ↑ see R v Valiquette 1990 CanLII 3048 (QC CA), (1990), 60 CCC (3d) 325 (QCCA) at 331 (“most people understand that the mentally ill require treatment and supervision, not punishment”)
  12. ↑ Belcourt, supra at para 8
  13. ↑ R v Batisse, 2009 ONCA 114 (CanLII)
  14. ↑ R v Lockyer, 2000 NLCA 59 (CanLII), [2000] NJ No 306 NLCA
  15. ↑ R v Hiltermann, [1993] AJ No 609 (CA) at paras 4-8
  16. ↑ R v Newby, 1991 ABCA 307 (CanLII), (1991), 84 Alta. L.R. (2d) 127 (Alta. C.A.)
    R v Rhyno, 2009 NSCA 108 (CanLII)
    R v Dickson, 2007 BCCA 561 (CanLII), 228 CCC (3d) 450
  17. ↑ R v Tremblay, 2006 ABCA 252 (CanLII) at para 7
    R v Resler, 2011 ABCA 167 (CanLII) at para 14
  18. ↑ R v Ayorech 2012 ABCA 82 (CanLII) at para 12
    R v Resler 2011 ABCA 167 (CanLII) at paras 9-10, 16
    R v Belcourt 2010 ABCA 319 (CanLII) at paras 7-8
    R v Muldoon, 2006 ABCA 321 (CanLII) at paras 9-10
  19. ↑ Newby, supra
    Ayorech, supra
  20. ↑ 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.’")
  21. ↑ R v H.(M.J.), 2004 SKCA 171 (CanLII)
  22. ↑ R v Ramsay 2012 ABCA 257 (CanLII)
  23. ↑ R v Adamo, 2013 MBQB 225 (CanLII)
    R v Ayorech, supra

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]

Cultural and customary differences cannot be considered mitigating where it involves offences of violence or offences of a sexual nature.[2]

However, a lack of facility with English has been treated as mitigating in certain circumstances.[3]

  1. ↑ R v Borde, 2003 CanLII 4187 (ON CA), per Rosenberg JA
    R v Rage, 2018 ONCA 211 (CanLII), at para 13
  2. ↑ R v Brown 1992 CanLII 2829 (AB CA)
  3. ↑ R v Huang, [2005] O.J. No. 1855 (S.C.J.)(*no CanLII links) , at para 21
    R v Shaliwal, [2011] M.J. No. 213(Q.B.)(*no CanLII links) , at para 41
    R v Lim, [1990] O.J. No. 949 (H.C.J.)(*no CanLII links) , per Doherty
    R v JWS, 2013 NSPC 7 (CanLII) 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]

It is not however a factor to consider the risk of harm to an individual while in custody.[4]

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".[5]

  1. ↑ R v Voutsis (1989), 47 CCC 451 (Sask. CA)
  2. ↑ R v Michel 1996, 133 WAC 237 (BCCA)
  3. ↑ R v Shah, 1994 CanLII 1290 (1994), 94 CCC 45 (BCCA)
    R v Maczynski (1997), 120 CCC 221, 1997 CanLII 2491
    R v FDM (1995), 29 WBC 148 (AltaCA)
  4. ↑ R v Campbell (1978), NSCA
  5. ↑ R v Schmitt, 2014 ABCA 105 (CanLII) 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)
  2. ↑ Schmitt, ibid.

Effect on Immigration

See also: Immigration Consequences from a Conviction

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. [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 to not inform 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]

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.[10]

Children
The judge may consider the impact of deportation on the offender's dependent children as mitigation.[11]

Counsel's Failure to Raise Immigration Status
A failure of counsel to raise the issue of immigration effect can by grounds of appellate intervention.[12]

  1. ↑ R v Pham, 2013 SCC 15 (CanLII)
    R v Hamilton 2004 CanLII 5549 (ON CA), (2004), 72 OR (3d) 1 at para 156, 186 CCC (3d) 129 (CA) at para 159
    R v Barkza, 2011 ABCA 273 (CanLII)
    R v Dhura , 2011 ABCA 165 (CanLII)
    R v Koc, 2008 NLTD 97 (CanLII), [2008] N.J. No. 161 (N.L.S.C.T.D.)
    R v Melo (1975), 26 CCC (2d) 510, at p. 516 (Ont. C.A.)
  2. ↑ R v B.R.C., [2010] O.J. No. 3571 (Ont. C.A.) at 6
    R v Melo (1975), 26 CCC (2d) 510 at p. 516
    Pham, supra at paras 20 to 22
  3. ↑ R v Morgan, 2008 NWTCA 12 (CanLII)
    R v Belenky, 2010 ABCA 98 (CanLII) 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) at para 24
  7. ↑ R v Dzabic, 2008 CanLII 53860 (ON SC)
  8. ↑ R v Razmara, 2012 ONCA 13 (CanLII)
  9. ↑ R v Spencer, 2015 NSCA 108 (CanLII) at para 8
  10. ↑ R v Kanthasamy, 2005 BCCA 135 (CanLII), at para 15
  11. ↑ R v Gaurino, 2017 ONSC 4174 (CanLII)
    R v Jiang, 2017 BCPC 111 (CanLII)
    R v Gomez, 2017 BCPC 7 (CanLII)
  12. ↑ Pham, supra at para 24
    R v Tmenov, 2017 ONCA 454 (CanLII)
    R v Jamieson, 2011 NSCA 122 (CanLII)

Other Collateral Consequences

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.[1]

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."[2]

The consequence does not need to "emanate from state misconduct" for it to be mitigating.[3]

An incarcerated offender who is attacked by fellow inmates can be taken as a collateral factor.[4]

After mitigating effects arising from collateral consequences are applied the sentence must still conform with the principle of proportionality.[5]

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.[6] Such violence should only be considered to a "limited extent".[7]

  1. ↑ R v Suter, 2018 SCC 34 (CanLII) at paras 45 to 59
    R v Pham, 2013 SCC 15 (CanLII), [2013] 1 S.C.R. 739, at para. 11
  2. ↑ Suter, supra at para 47
  3. ↑ Suter, supra at para 56
  4. ↑ Suter, supra at para 51
    R v MacFarlane, 2012 ONCA 82 (CanLII), 288 O.A.C. 114, at para 3
  5. ↑ Suter, supra at para 56
  6. ↑ Suter, supra at para 58
  7. ↑ Sutder, supra at para 59

Aboriginal Background

See Aboriginal Sentencing Principles and Factors

During Proceedings

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]

Timing of Plea
The timing of a guilty plea is important. An early guilty plea generally deserves "considerable weight" in sentencing.[13] It may entitle the accused to "substantial credit" in sentence.[14]

A guilty plea during trial may still deserve mitigation on sentence.[15]

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.[16]

  1. ↑ R v Holder, 1998 CanLII 14962 (ON SC), (1998), 21 C.R. (5th) 277 (Ont. S.C.J.) at 281-2
    R v Beier, [1995] O.J. No. 2552 (C.A.) at para 2 per curiam
    R v Sawchyn, 1981 ABCA 173 (CanLII), (1981), 60 CCC (2d) 200 (Alta. C.A.) at 210
  2. ↑ R v Cardiner (1982) 68 CCC 477 (SCC)
    R v Fegan, 1993 CanLII 8607 (ON CA), (1993), 80 CCC (3d) 356 at 360–61, 13 O.R. (3d) 88 (C.A.)
    R v Ticne, 2009 BCCA 191 (CanLII), at para 23
    Wisniewski, (1975) 29 CRNS 342 (Ont.)
  3. ↑ Holder, supra
    R v Randhawa, 2007 BCCA 598 (CanLII), per Hall J.A. at para 7
  4. ↑ R v Johnson and Tremayne, [1970] 4 CCC 64 (Ont. C.A.) at 67 per Gale C.J.O.
    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.) at p. 17
    R v Santos (J.) , (1993), 67 O.A.C. 270 (C.A.) at 270-271
    Randhawa, supra at para 7
  6. ↑ Randhawa, supra at para 7
    Ticne, supra at para 23
  7. ↑ R v Roberts, [1998] O.J. No. 461 (C.A.) (Q.L.), at para 6
  8. ↑ R v FHL, 2018 ONCA 83 (CanLII), 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, at para 12 (“its significance as [a mitigating] factor is variable”)
    R. v. Carreira, 2015 ONCA 639 (CanLII) at para. 15
  10. ↑ FHL, supra at para 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)
  13. ↑ R v Patterson, [1998] O.J. No. 937 (C.A.) at para 1
    R v Pitkeathly, 1994 CanLII 222 (ON CA), (1994), 29 C.R. (4th) 182 (Ont. C.A.) at 184-5
    R v T.(R.), 1992 CanLII 2834 (ON CA), (1992), 17 C.R. (4th) 247 (Ont. C.A.) at 263 per Doherty J.A.
  14. ↑ R v Mann, 2010 ONCA 342 (CanLII) at para 21
  15. ↑ R v Garofoli et al. 1988 CanLII 3270 (ON CA), (1988), 41 CCC (3d) 97 (Ont. C.A.) at 153 per Martin J.A. aff'd on other issue at 1990 CanLII 52 (SCC)
  16. ↑ R v Vickers, 1998 CanLII 14982 (BC CA)

Conduct During Trial

Thought 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) at para 34
    R v White, [2008] OJ No 4511 (ON SC) 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] O.J. No. 955, at paras 15 and 16
    R v Kozy, 1990 CanLII 2625 (ON CA), [1990] O.J. No. 1586 (C.A.) at paras. 4-6
    R v Bani-Naiem, 2010 ONSC 1890 (CanLII), [2010] O.J. No. 1234, 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.
  1. ↑ R v Panday, 2007 ONCA 598 (CanLII)
  2. ↑ R v Downes, 2006 CanLII 3957 (ON CA) at 23
  3. ↑ R v Knockwood 2009 NSCA 98 (CanLII)
  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) at para 63

Delay

Delay between the date of the offence and sentence is not usually 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] Courts are reluctant to give sentence credit for this reason, however.[3]

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.[4]

On serious offences, the passage of time between the offence and sentence does not reduce the need for denunciation or deterrence.[5]

Other factors in delay to consider include:[6]

  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)
  2. ↑ R v McAulay, 1987 ABCA 44 (CanLII)
    R v Bosley, 1992 CanLII 2838 (ON CA), (1992), 18 CR (4th) 347 at p. 358
    R v Leaver, 1996 CanLII 10223 (ON CA), (1996), 3 CR (5th) 138 (ONCA)
    R v Dwyer, [2000] OJ 3598 (ONSC)(*no CanLII links)
    R v Spencer, [2003] OJ 10 (ONSC), 2003 CanLII 36890 (ON SC)
    Right to a Trial Within a Reasonable Time
  3. ↑ R v Glykis, 1995 CanLII 1277 (ON CA), (1995), 41 CR (4th) 310 (ONCA)
  4. ↑ R v Archibald 2012 ABCA 202 (CanLII) at para 13
  5. ↑ R v Partridge, 2005 NSCA 159 (CanLII)
  6. ↑ R v Critton, 2002 CanLII 3240 (ON SC), [2002] O.J. No. 2594 (ONSC) per Hill, J at para 76

Pre-trial Custody

719.
...
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.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

Reasons

(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.


– CCC

Section 719(3.1) 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)
    R v Dann, 2011 NSPC 22 (CanLII)
  2. ↑ R v Crawford, 2010 ABCA 290 (CanLII)

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) at paras 32-35
    R v Sadler, 2009 BCCA 386 (CanLII) at paras 23-29
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