Canadian Criminal Sentencing/Procedure/Evidence

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.

Character Evidence Character evidence is admissible and relevant to sentencing. Character evidence may be excluded where fairness would outweigh the probative value.

Factual findings
Section 723 codifies the common law rules on submission of evidence on sentencing.

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
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.

Hearsay
Hearsay is admissible in sentencing under s. 723.

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.

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:
 * 1) 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;
 * 2) the similarity between the evidence and the offence for which the offender was convicted;
 * 3) the difficulty the offender may encounter in properly defending against the allegations in the proposed evidence;
 * 4) the danger that the sentence hearing will be unduly prolonged;
 * 5) 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;
 * 6) whether, as in Lees, the offender has adduced evidence of good character; and
 * 7) the cogency of the proposed evidence.

Post-Sentence evidence
See: Canadian_Criminal_Procedure_and_Practice/Appeals