Canadian Criminal Sentencing/Procedure/Evidence
The admissibility of evidence is significantly different in a sentencing hearings than in trials. The interests at stake differ in a sentencing as opposed to a trial as the presumption of innocence is gone and there is no longer a concern for a wrongful conviction.
In sentencing, courts should be open to a broad range of information in order to achieve the objectives under the Code.
However, the evidence must still meet the standard of accuracy, credibility and reliability.
The prejudicial effect of the evidence should not outweigh the probative value.
Exclusionary rules of evidence are not applied strictly in sentencing.
Admissibility voir dires, such as for voluntariness, may be held but are not necessary.
In 1996, Part XXIII was amended to create a statutory framework for sentencing hearings.
The law of evidence at sentencing equally applies to dangerous and long term offenders.
- R. v. Angelillo, 2006 SCC 55 (CanLII),  2 SCR 728 such as at para. 30
R. v. Jones, 1994 CanLII 85 (SCC),  2 SCR 229 at p.396 ("...both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the ganger posed by the offender.") and at p. 398 ("sentencing judge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at his disposal the broadest possible range of information."(
McWilliams' Canadian Criminal Evidence, Fourth Edition at 34:10
R. v. Lévesque, 2000 SCC 47 (CanLII),  2 SCR 487 at para. 30
R. v. Campbell, 2003 CanLII 49352 (ON SC) at para. 31
Angelillo at para. 20
Angelillo at para. 32
R. v. Edwards, 2001 CanLII 24105 (ON CA) at para. 63 Campbell
Campbell at para. 29, 31, 32
R. v. Boyd, 1983 CanLII 240 (BC CA)
- Campbell at para. 9
- Angelillo, such as at para. 21
- R. v. Johnson, 2003 SCC 46 (CanLII),  2 SCR 357 at para. 23
Edwards at para.39-42
Angelillo at para. 28, 29
- Angelillo at para. 32
Ewards at para. 63
Section 723 codifies the common law rules on submission of evidence on sentencing.
Submissions on facts
723. (1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.
Submission of evidence
(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.
Production of evidence
(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.
(4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence.
R.S., 1985, c. C-46, s. 723; 1995, c. 22, s. 6.
724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
On a guilty plea, a judge may rely on facts that are agreed upon by the parties. The Crown will read the facts alleged as well as submit allegations of prior criminal convictions. The Defence must have an opportunity to deny or consent to the allegations.
In practice, at a minimum the crown should read-in enough facts to make out the essential elements of the offence. Preferably there should also be all admitted facts going to aggravating and mitigating factors.
The judge may rely upon any information placed before him. This includes submissions by Crown and Defence counsel as well as admissible evidence.
A guilty plea is only an admission of the essential elements of the offence.
On sentencing, where facts are not in dispute, the judge may makes inferences from proven or undisputed evidence.
Disputed of facts
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
- (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
- (b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
- (c) either party may cross-examine any witness called by the other party;
- (d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
- (e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.
– R.S., 1985, c. C-46, s. 724; 1995, c. 22, s. 6., CCC
Where there is a dispute on facts, the court cannot rely upon the crown's version without supported facts. To settle the conflict the judge must hear evidence to settle the evidence or chose to accept the accused's version "so far as possible". If the difference amounts to a dispute between characterizations, the Defence must call evidence.
Aggravating facts must be proved beyond a reasonable doubt by the crown.
A "Gardiner Hearing" refers to the hearing of oral evidence that is conducted at sentencing where there is a dispute between the parties as to the facts on a guilty plea.
This hearing is conducted according to s. 724(3). It will concern the “extrinsic evidence” that must be proven by the crown.
The Crown does not have to prove voluntariness of statements made by the accused.
- R. v. Choice Atlantic Seafoods Inc., 2001 NSSC 161 at para. 7
- s. 724(3)(e)
R. v. Choice Atlantic Seafoods Inc., 2001 NSSC 161 at para. 7 citing R. v. Poorman 1991 CanLII 2759 (SK C.A.), (1991), 6 C.R. (4th) 364 (Sask. C.A.)
- R. v. Poulin, 1995 CanLII 2368 (BCCA)
R. v. Larche, 2006 SCC 56,  2 S.C.R. 762 at para. 43-44
R. v. Tomdio-Yiuiti, 2010 SKCA 81
R. v. Malinowski, 2007 SKCA 33 at para. 6
R. v. Lewis, 2012 NLCA 11, ("an aggravating factor that is disputed is, like an essential element of the offence, required to be proven beyond a reasonable doubt.") R. v. Gardiner, 1982 CanLII 30 (S.C.C.),  2 S.C.R. 368 at p. 414-5
R. v. Angelillo 2006 SCC 55 (CanLII), (2006), 214 C.C.C. (3d) 309 (S.C.C.), ("the extrinsic evidence is contested, the prosecution must prove it. Since the facts in question will doubtless be aggravating facts, they must be proved beyond a reasonable doubt (s. 724(3)(e)). The court can sentence the offender only for the offence of which he or she has been convicted, and the sentence must be proportionate to the gravity of that offence...")
- see R. v. Gardiner, 1982 CanLII 30 (SCC),  2 S.C.R. 368 (the "issue should be resolved by ordinary legal principles governing criminal proceedings")
- R. v. Angelillo 2006 SCC 55 (CanLII), (2006), 214 C.C.C. (3d) 309 (S.C.C.),
- R v Lees,  2 SCR 749
Hearsay is admissible in sentencing under s. 723.
(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person
- (a) has personal knowledge of the matter;
- (b) is reasonably available; and
- (c) is a compellable witness.
R.S., 1985, c. C-46, s. 723; 1995, c. 22, s. 6.
As with all evidence at sentencing, it must be credible and reliable.
Documentary evidence, such as reports, records, and assessments, may be admitted for the truth of its contents.
The flexible standard may not apply where the Crown wishes to prove aggravating factors which requires proof beyond a reasonable doubt.
R v Francis (2005) CCC (3d) 147 at para. 24, 27
R v JPL 2006 ABPC 313 at para. 5
R. v. Janes Family Foods Ltd., 2008 ONCJ 13 (CanLII)
R. v. McKay, 2004 MBQB 146 at para. 4-9
R. v. Ellard, 2005 BCSC 1087 (CanLII) at para. 22
R. v. Piche, 2006 ABCA 220 (CanLII) at para. 14-16
Levesque at para. 30
Angelillo at para. 20, 21
Evidence of Untried Offences
Evidence of untried offences is generally a form of character evidence and may be admissible.
Factors to consider whether untried conduct is admissible to establish character includes the following:
- the nexus between the evidence and the offence for which the offender was convicted—the closer the connection the more likely the evidence will shed light on the circumstances of the charged offence;
- the similarity between the evidence and the offence for which the offender was convicted;
- the difficulty the offender may encounter in properly defending against the allegations in the proposed evidence;
- the danger that the sentence hearing will be unduly prolonged;
- the danger that the focus of the sentence hearing will appear to be diverted from the true purpose of imposing a fit sentence for the charged offence that is proportionate to the gravity of the offence and the degree of responsibility of the offender in accordance with s. 718.1;
- whether, as in Lees, the offender has adduced evidence of good character; and
- the cogency of the proposed evidence.