Canadian Criminal Sentencing/Factors of Sentencing

Introduction
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".

Criminal Record
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:

An offence committed while on parole is an aggravating factor. By contrast the added consequences of parole revocation should not be mitigating.

Age
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.

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. Only in exceptional circumstances can the lack of remorse be taken as aggravating.

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
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.

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

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 denunciation.

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.

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:

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.

Aboriginal background
See Canadian Criminal Sentencing/Aboriginal Principles and Factors

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".

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.

State Misconduct
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.”

Police Misconduct
Police misconduct during an investigation can play a factor in sentencing. This includes having a mitigating factor where an accused's Charter rights have been breached.

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

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.

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.

Guilty Plea
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.

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. 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.

Delay
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:
 * 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.

Pre-trial custody
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.