Canadian Criminal Sentencing/Factors of Sentencing
- 1 Introduction
- 2 Personal circumstances
- 3 Circumstances of the Offence
- 4 Circumstances of the Proceedings
The process of determining the appropriate sentence includes the enumerating of aggravating and mitigating factors of the offence and offender. The three broad categories of factors to consider consist of personal circumstances, circumstances of the offence, and circumstances of the proceedings.
As discussed in the Chapter on Purpose and Principles of Sentencing, 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".
A criminal record will be an aggravating factor.
A criminal record can show that the offender is a "scofflaw" or is not rehabilitated or "learned from past mistakes".
A criminal record can only be considered where the offender had one at the time of the index offence (this is known as the Coke Rule).
However, when a judge sentences for a convicted offence, the judge may take into consideration other criminal acts, and in a limited fashion, such as offences admitted in an agreed statement facts or pending charges.
This is largely codified in s. 725:
725. (1) In determining the sentence, a court
- (a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;
- (b) shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;
- (b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:
- (i) the Attorney General and the offender consent,
- (ii) the court has jurisdiction to try each charge,
- (iii) each charge has been described in open court,
- (iv) the offender has agreed with the facts asserted in the description of each charge, and
- (v) the offender has acknowledged having committed the offence described in each charge; and
- (c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.
Attorney General’s consent
(1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.
No further proceedings
(2) The court shall, on the information or indictment, note
- (a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and
- (b) any facts considered in determining the sentence under paragraph (1)(c),
and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal. R.S., 1985, c. C-46, s. 725; R.S., 1985, c. 27 (1st Supp.), s. 158, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 6; 1999, c. 5, s. 31.
An offence committed while on parole is an aggravating factor. By contrast the added consequences of parole revocation should not be mitigating.
- R. v. Squires, 2012 NLCA 20, (a criminal record "will be viewed as an aggravating factor leading to a more serious punishment rather than as a factor that tends to limit or lessen punishment.")
- R. v. Barrett, 2012 NLCA 46, at para 35 (a “criminal record is often quite relevant on sentencing in that it may show the offender to be a scofflaw, or lead to an inference that he or she has not been rehabilitated or otherwise learned from past mistakes.”)
R v Andrade, 2010 NBCA 62
see also R. v. Garcia and Silva,  1 O.R. 821 at 823,  3 C.C.C. 124 (C.A.).
- R. v. Garcia and Silva,  3 C.C.C. 124 (Ont. C.A.)
see also R. v. Edwards 2001 CanLII 24105 (ON CA), (2001), 54 O.R. (3d) 737 (C.A.)
- R. v. Lavallee, 2006 ABCA 324 (CanLII)
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, and immature. This diminishes their level of responsibility and moral blameworthiness.
Likewise, the principle of restraint is a prominent factor for young offenders.
- eg see R. v. Kunzig, 2011 MBPC 81 at 54
- See: R. v. Demeter and Whitmore (1976), 32 C.C.C. (2d) 379 (Ont. C.A.)
Effect on Employment and Status
Loss of professional or social status is not generally a mitigating factor nor is the ability to do a particular job well a mitigating factor.
However, it has been said that the "ruin and humiliation" brought upon the accused and his family as well as the loss of professional status can provide denunciation and deterrence.
Degree of remorse and attitude
Remorse is a mitigating factor. Remorse is demonstrated by the acceptance of responsibility through word or action as well as demonstrated insight into the offender's actions. A lack of remorse, however, does not make for an aggravating factor, but simply does not allow for the mitigating effect of remorse.
The courts should have "restraint...for persons who spontaneously acknowledge their culpability, have genuine remorse and seek voluntarily to make reparations."
A lack of remorse or acceptance of responsibility generally cannot be taken as an aggravating factor, but rather can only be taken as an absence of mitigating factors. </ref> Only in exceptional circumstances can the lack of remorse be taken as aggravating.
- R. v. Anderson 1992 CanLII 6002 (BC C.A.), (1992), 74 C.C.C. (3d) 523, at p. 535-536, 16 B.C.A.C. 14
- See LaForme J.A. in R. v. Kakekagamick, 2006 CanLII 28549 (ON C.A.),  81 O.R. (3d) 664, 211 C.C.C. (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".
- R. v. Arcand (2011), 499 A.R. 1 (Alta. C.A.) at para 293
R v Proulx, 2000 SCC 5,  1 SCR 61
R v Williams,  OJ No. 1604, 2007 CanLII 13949 (ON SC) at para 32
R. v. Hawkins, 2011 NSCA 7 at para. 31 to 34 see also: R v Henry 2002 NSCA 33 at para. 21
R v Zeek, 2004 BCCA 42
- R. v. Hawkins, 2011 NSCA 7 at para. 33
Addiction and Substance Abuse
Substance abuse, by itself, is not ordinarily a mitigating factor. Nor is a history of addiction a mitigating factor to sentence. However, it can suggest a lower level of moral culpability and otherwise good character but for the addiction. It is also helpful for the court to know about to determine whether rehabilitation is a possibility when crafting an appropriate sentence.
Gambling addiction is not generally a mitigating factor.
Mental health can be a mitigating factor to sentence even where it is not so severe to remove criminal responsibility. Mental disorders, such as schizophrenia, can be a mitigating factor even when there is no a direct causal connection between the offence and the illness.  This is also true where the offender was not suffering from delusions at the time. It is sufficient that the illness contributed in some way to the offence. However, the offender's mental health condition is not a factor in sentencing where there is no connection at all between the offence and the condition.
However, at times mental illness will be considered an aggravating factor that will increase sentence where it is necessary to protect the public from a dangerous persons who has committed a dangerous offence. Mental illness reduces the importance of denunciation and deterrence and increases the importance of treatment. This includes situations where rehabilitation or cure is impossible.
Mental illness is often considered a basis to order treatment and supervision over punishment.
A mental illness diminishes the offender’s degree of responsibility.
It will also attenuate the relative importance of deterrence and denunication.
An Offenders mental illness can make a jail sentence more severe.
Diminished intellectual capacity however is not a mitigating factor.
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.
- R. v. Peters 2000 NFCA 55, (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.”)
- R. v. Ayorech,  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.”)
- R v Resler, 2011 ABCA 167
R v Ayorech, 2012 ABCA 82
- R v Belcourt, 2010 ABCA 319
- R. v. Shahnawaz, 2000 CanLII 16973, (2000), 149 CCC 97 (Ont.CA)
R v Lundrigan,  NJ No 231 (NLCA) at para. 20
see R. v. J.M.,  N.J. No. 262 (P.C.)
R. v. Taylor,  N.J. No. 251 (P.C.))
- R v Lockyer, 2000 NLCA 59  NJ No 306 NLCA
- R v Hiltermann,  AJ No 609 (CA) at paras 4-8
- see R. v. Valiquette 1990 CanLII 3048 (QC CA), (1990), 60 C.C.C. (3d) 325 (QCCA) at 331 (“most people understand that the mentally ill require treatment and supervision, not punishment”)
Ayorech 2012 ABCA 82 at 12
Resler 2011 ABCA 167 at 9-10, 16
Belcourt 2010 ABCA 319 at 7-8
R v Muldoon, 2006 ABCA 321 at 9-10
R v Tremblay, 2006 ABCA 252 at para 7
R v Resler, 2011 ABCA 167 at para 14
- Ayorech 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.’")
- R v H.(M.J.), 2004 SKCA 171
- R. v. Ramsay 2012 ABCA 257 (CanLII)
Sympathy and compassion
The court may allow for a degree of leniency for sympathetic or compassionate offenders. This will occasionally be done where the accused can show that his "health is so precarious" that the offender may not survive if they are incarcerated.  However, simply poor health or age is not usually a reason on its own.
It is not however a factor to consider the risk of harm to an individual while in custody.
Effect on Immigration
Section 64 of the Immigration and Refugee Protection Act states:
64(1) No appeal for inadmissibility
No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
64(2) Serious criminality
For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
The risk of deportation can be a factor to consider sentencing.  It must be weighed and considered with all other factors and circumstances of the case. However, it should not bring the sentence out of the appropriate range.
The impact on the ability to get a VISA to places like the US may influence the court to consider an absolute discharge over a conditional discharge due to the treatment of probation to immigration.
The effect of an offender's immigration status on the likelihood of day parole is not a factor in sentence.
R v Hamilton 2004 CanLII 5549 (ON CA), (2004), 72 OR (3d) 1 at para 156, 186 CCC (3d) 129 (CA)para 159
R. v. Barkza, 2011 ABCA 273
R v Dhura , 2011 ABCA 165 
R. v. Koc, 2008 NLTD 97  N.J. No. 161 (N.L.S.C.T.D.)
R. v. B.R.C.,  O.J. No. 3571 (Ont. C.A.) at 6
R. v. Melo (1975), 26 C.C.C. (2d) 510 at p. 516
R v Morgan, 2008 NWTCA 12
R v Belenky, 2010 ABCA 98 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.")
- R. v. Dzabic, 2008 CanLII 53860 (ON SC)
- R. v. Razmara, 2012 ONCA 13
Circumstances of the Offence
Age 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”  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.”
Breach of Trust
Where there is a breach of the public's trust it will be treated as aggravating beyond private breach of trust.
Victim Under 18
Section 718.01 requires that "[w]hen a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."
In relation to s.718.01, the Alberta Court of Appeal has stated that it "has always been the position of this court in dealing with crimes against defenseless children that a strong response was warranted".
- R. v Nickle, 2012 ABCA 158 (CanLII) at para 19
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.
A sentence may “be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach.”
However, conduct amounting to basic violation of a procedural right under the charter will not usually result in a reduction where the breach does not invoke s. 24(1) of the Charter. 
In exceptional cases, the charges may be stayed.
Use of Force by Peace Officers
Protection of persons acting under authority
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
- (a) as a private person,
- (b) as a peace officer or public officer,
- (c) in aid of a peace officer or public officer, or
- (d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.
When not protected
(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.
(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if
- (a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
- (b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
- (c) the person to be arrested takes flight to avoid arrest;
- (d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
- (e) the flight cannot be prevented by reasonable means in a less violent manner.
R.S., 1985, c. C-46, s. 25; 1994, c. 12, s. 1.
Where a peace officer uses force that is not covered by s.25, a possible violation of the accused’s section 7 Charter rights arises.
There is a violation of the “security of the person” in the context of a criminal prosecution where there is “state interference with bodily integrity and serious state-imposed psychological stress”
Peace officers are expected to use force to effect an arrest or prevent flight from custody. This power is constrained by proportionality, necessity, and reasonableness.
Use of force under s.25(3) is determined on a subjective and objective basis.
Police should not be judged on a standard of perfection. It should be expected that they will be reacting quickly in emergency situations.
R. v. Markowska, 2004 ONCJ 332 -- police executed search warrant of massage parlour with weapons drawn. court found this to be egregious and unjustified.
- R. v. Pigeon 1992 CanLII 869 (BCCA)
- R. v. Nasogaluak, 2010 SCC 6
- eg. R. v. Charanek, 2011 ABPC 374
- R. v. Tran, 2010 ONCA 471
- Section 7 of the Canadian Charter of Rights and Freedoms states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
- R v Morgentaler,  1 SCR 30, 1988 CanLII 90
- R v Nasogaluak, 2010 SCC 6 at 32
- Chartier v Greave,  OJ No. 634 (ONSC) at 29
- R v Nasogaluak, 2010 SCC 6 at 35
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.”
Prior uncharged conduct cannot be used as an aggravating factor, however, can be relevant to sentencing as it shows character and background.
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.
Circumstances of the Proceedings
A guilty plea is a mitigating factor in a number of respects. It is evidence of remorse , it saves the justice system resources, and it excuses victims from the stress of having to testify. 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.
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.
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.
- R. v. Cardiner (1982) 68 CCC 477 (SCC)
Wisniewski, (1975) 29 CRNS 342 (Ont.)
- R. v. Vickers (1998), (BCCA)
- R. v. Conlon, 2011 ABPC 259
Strict bail conditions are not treated as equivalent to pre-trial detention, and so remand credit is not applicable for strict bail conditions. The court may consider the bail conditions that the offender up to the date of sentencing. 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.
Restrictive bail conditions should be treated flexibly. The amount of credit, if any, is in the discretion of the trial judge to determine.
In Ontario, the following guidelines were suggested in R v Downes 2006 CanLII 3957 (ONCA):
- 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.
- R. v. Panday, 2007 ONCA 598
- R. v. Downes, 2006 CanLII 3957 (ON CA) at 23
- R. v. Knockwood 2009 NSCA 98
- R. v. Downes,  O.J. No. 555 (C.A.) 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.”)
- R v Downes, 2006 CanLII 3957 (ONCA) at para 37; R v Ijam, 2007 ONCA 597 at 63
Delay between the date of the offence and sentence is not 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. 
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.
On serious offences, the passage of time between the offence and sentence does not reduce the need for denunciation or deterrence.
Other factors in delay to consider include:
- the effect of delay on sentencing is a case‑specific inquiry
- 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
- 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
- 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)
- 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.
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).
- (3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.
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.
The judge cannot deny pre-trial custody credit to a sentence simply because of the nature his record.