Sentencing Factors Relating to the Offender

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 95524)

General Principles

See also: Sentencing Factors Relating to the Offence and Sentencing Factors Relating to the Criminal Proceedings

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".

Distinctions between offender must be relevant to the degree of responsibility before they can be factored into sentencing.[1]

  1. ↑ R v Gerbrandt, 2021 ABCA 346 (CanLII), per curiam, at para 85
    R v Roberts, 2020 ABCA 434 (CanLII), Alta. L.R. (7th) 255, per curiam, at paras 42 to 47
    R v Ford, 2019 ABCA 87 (CanLII), 371 CCC (3d) 250, per curiam
    R v Costello, 2019 ABCA 104 (CanLII), [2019] AJ No 334, per curiam, at para 8
    R v Miller, 2018 ABCA 356 (CanLII), 2018] AJ No 1263, per curiam (2:1), at paras 13 to 17
    R v Fuller, 2017 ABCA 361 (CanLII), 60 Alta LR (6th) 219, per curiam, at para 7
    R v Maier, 2015 ABCA 59 (CanLII), 599 AR 44, per curiam (2:1), at para 31
    R v Murphy, 2014 ABCA 409 (CanLII), 317 CCC (3d) 314, per curiam
    R v Lausberg, 2013 ABCA 72 (CanLII), 544 AR 56, per McDonald J, at para 23
    R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 12
    R v Virani, 2012 ABCA 155 (CanLII), 545 WAC 328, per curiam, at para 16
    R v Ramsay, 2012 ABCA 257 (CanLII), 292 CCC (3d) 400, per curiam, at paras 15 to 34
    R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam, at paras 8 to 10
    R v Belcourt, 2010 ABCA 319 (CanLII), 490 AR 224, per Slatter JA (2:1), at para 8
    R v B(TL), 2007 ABCA 61 (CanLII), 218 CCC (3d) 11, per Fraser CJ, at para 25
    R v Gibbon, 2007 ABCA 300 (CanLII), 417 AR 37, per Costigan JA, at para 12
    R v Diebel, 2007 ABCA 418 (CanLII), per curiam, at paras 16 to 23


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]

Maturity of Adults

The naivete and immaturity are valid mitigating factors affecting culpability.[11]

Advanced Age Offenders

An offender of advanced age can "in some circumstances" be considered a mitigating feature.[12] 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.[13]

  1. ↑ eg see R v Kunzig, 2011 MBPC 81 (CanLII), per MJ Smith J, at para 54
    R v Scott, 2015 ABCA 99 (CanLII), 599 AR 182, per curiam (3:0), at para 13
    R v Jackson, 2002 CanLII 41524 (ON CA), 163 CCC (3d) 451, per Sharpe JA (3:0)
  2. ↑ See: R v Demeter and Whitmore, 1976 CanLII 1413 (ON CA), 32 CCC (2d) 379, per Dubin JA
  3. ↑ Demeter and Whitmore, ibid.
    R v Ijam, 2007 ONCA 597 (CanLII), 226 CCC (3d) 376, per MacPherson JA, at paras 55 to 56, 87 OR (3d) 81
    R v Hussey, 1990 CanLII 6491 (NL CA), , 83 Nfld & PEIR 161 (Nfld CA), per Gushue JA (3:0)
    Scott, supra, at para 13
  4. ↑ Scott, supra, at para 13
    R v Quesnel, 1984 CanLII 3475 (ON CA), 14 CCC (3d) 254, per Thorson JA, at p. 255 (CCC)
  5. ↑ R v Turner, 1970 CanLII 522 (ON CA), 1 CCC (2d) 293 (ONCA), per Haines J
  6. ↑ R v Priest, 1996 CanLII 1381 (ON CA), [1996] OJ No 3369 (CA), per Rosenberg JA (3:0)
    R v Nassri, 2015 ONCA 316 (CanLII), 125 OR (3d) 578, per Sharpe JA (3:0), at para 30
  7. ↑ R v Borde, 2003 CanLII 4187 (ON CA), 63 OR (3d) 417, per Rosenberg JA (3:0), at para 36
  8. ↑ e.g. R v Wiens, 2013 ABPC 15 (CanLII), 551 AR 195, per Pharo J, at para 32
  9. ↑ R v Cromwell, 2006 ABCA 365 (CanLII), 214 CCC (3d) 502, per O’Brien JA, 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), per curiam (3:0)
  10. ↑ e.g. R v Bulleyment, 1979 CanLII 2922 (ON CA), 46 CCC (2d) 429, per Martin JA
    R v Odgers, 2006 ABPC 163 (CanLII), 400 AR 322, per JDB McDonald J, at para 29
  11. ↑ R v McLean, 2016 SKCA 93 (CanLII), 132 WCB (2d) 96, per Ottenbreit JA
    see also R v Vandenbosch, 2007 MBCA 113 (CanLII), per Chartier JA, at para 95
  12. ↑ R v Walker, 2016 ABQB 695 (CanLII), per Ackerl J, at para 74
  13. ↑ Walker, ibid., at para 74
    R v AR, 1994 CanLII 4524 (MB CA), [1994] MJ No 89, 92 Man R (2d) 183 (CA), per Twaddle JA

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]

Strong Case

Remorse has little importance when the case is so strong that "guilt is inevitable."[8]

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."[9]

Mistake of Law

While not strictly a defence at trial, a mistake of law can be mitigating for sentence. Where the accused honestly but mistakenly believe in the lawfulness of their actions they are therefore less morally blameworthy.[10]

  1. ↑ R v Anderson, 1992 CanLII 6002 (BC C.A.), 74 CCC (3d) 523, per Southin JA and Taylor JA, at pp. 535-536, 16 BCAC 14
    R v Nash, 2009 NBCA 7 (CanLII), 240 CCC (3d) 421, per Robertson JA (3:0), at para 40
    R v Cormier, 1999 CanLII 13118 (NB CA), 140 CCC (3d) 87, per Larlee JA
  2. ↑ See R v Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] 81 OR (3d) 664, 211 CCC (3d) 289, per Laforme JA (3:0), at para 73 ("[his] failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation")
    R v Wowk, 2020 ABCA 119 (CanLII), per curiam, at para 23
    R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, 43 OR (3d) 178, at paras 82 to 83
    See also R v Kozy, 1990 CanLII 2625 (ON CA), 58 CCC (3d) 500, per Carthy JA (3:0), at pp. 505-506
    R v Anderson, 1992 CanLII 6002 , per Southin JA, at pp. 535-536
    R v Brown, [1993] OJ No 624 (CA)(*no CanLII links)
    R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, per Rosenberg JA (3:0), at paras 80 to 85
  3. ↑ R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 293
  4. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ
    R v KA, 1999 CanLII 3756 (ON CA), [1999] OJ No 2640, per Rosenberg JA, at para 49
    R v Reid, 2017 ONCA 430 (CanLII), [2017] OJ No 2758, per van Rensburg JA, at para 36
    R v Cormier, 1999 CanLII 13118 (NB CA), 140 CCC (3d) 87, per Larlee JA
    R v S(E), 1997 CanLII 11513 (NB CA), 191 NBR (2d) 3 (CA), per Ryan JA, at para 6
    R v Williams, 2007 CanLII 13949 (ONSC), [2007] OJ No 1604, per Hill J, at para 32
    R v Hawkins, 2011 NSCA 7 (CanLII), 265 CCC (3d) 513, per Beveridge JA, at paras 31 to 34
    see also: R v Henry, 2002 NSCA 33 (CanLII), 164 CCC (3d) 167, per Roscoe JA, at para 21
    R v Zeek, 2004 BCCA 42 (CanLII), 193 BCAC 104, per Rowles JA
  5. ↑ Hawkins, supra, at para 33
    Valentini, supra
  6. ↑ Hawkins, supra
  7. ↑ R v Yau, 2011 ONSC 1009 (CanLII), OJ No 720, per MacDonnell J, at para 27
    see, e.g. R v Valentini, 1999 CanLII 1885 (ON CA), 132 CCC (3d) 262, per Rosenberg JA
    R v Giroux, 2006 CanLII 10736 (ON CA), 207 CCC (3d) 512, per Blair JA
    R v B(C), 2008 ONCA 486 (CanLII), 78 WCB (2d) 80, per Gillese JA (3:0)
  8. ↑ R v Singh, 2018 ONSC 3850 (CanLII), per Harris J
    R v Faulds, 1994 CanLII 770 (ON CA), , 20 OR (3d) 13, per curiam, at para 14
    R v Daya, 2007 ONCA 693 (CanLII), 227 CCC (3d) 367, per Moldaver and LaForme JJA, at para 15
  9. ↑ R v Sawchyn, 1981 ABCA 173 (CanLII), 124 DLR (3d) 600, per Laycraft JA, at para 34
    R v Nyoni, 2017 BCCA 360 (CanLII), per Newbury JA, at para 8
  10. ↑ R v Suter, 2018 SCC 34 (CanLII), [2018] 2 SCR 496, at para 64 ("This is because offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who — in committing the same offence — are unsure about the lawfulness of their actions, or know that their actions are unlawful.")

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 v Morency, 2012 QCCQ 4556 (CanLII), per Morand J, 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, per Provost J
    R v Flahiff, 1999 CanLII 10716 (QC CQ), [1999] R.J.Q. 884, per Boisvert J
    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 CanLII 41073 (ON CA), 61 OR (3d) 75, per Laskin JA ( “[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."[1]

"Stressors" that "precipitated" the offence rendering the offence "out of character" will have a mitigating effect.[2]

There is some criticism of the mitigating effect of character. All persons are obligated to "obey the law" and should not be used as "credit against punishment" for the commission of an offence.[3] It is also considered an "unprincipled" use of "personal history" evidence.[4]

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.[5]

  1. ↑ R v Shrivastava, 2019 ABQB 663 (CanLII), per Antonio J, at paras 72 to 93
    R v Misay, 2021 ABQB 485 (CanLII), at para 127
  2. ↑ R v McIntosh, 2012 ONCJ 216 (CanLII), OJ No 1772, per Hearn J, at para 38
  3. ↑ Misay, supra, at para 128 ("Justice Antonio also pointed out that obeying the law, an obligation we all bear, cannot be taken to earn credit against punishment for commission of a serious offence")
    Shrivastava, supra, at para 78
  4. ↑ Misay, supra, at para 127
  5. ↑ e.g. R v Malt, 2016 BCPC 322 (CanLII), per Harris J, at para 10

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]

In sexual abuse against children, the fact that an accused is unlikely to re-offend is not a significant consideration. The emphasis should be on general deterrence and denunciation.[3]

  1. ↑ e.g. R v Patton, 2011 ABCA 199 (CanLII), 505 AR 394, per curiam, at para 10
  2. ↑ R v Carelse, 2013 SKQB 15 (CanLII), 411 Sask R 263, per Danyliuk J, at paras 28 to 30
  3. ↑ R v SCW, 2019 BCCA 405 (CanLII), per Goepel JA, at para 26 (" should further note that even if it could be said that the judge erred in not giving weight to the opinion, it would likely have had no impact on the sentence. The fact that an accused is unlikely to re‑offend is not a significant consideration in a case concerning sexual abuse against children when the emphasis is properly based on matters of general deterrence and denunciation")

Post Offence Conduct

Efforts at rehabilitation and career 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 an 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]

Correctional Records

The disciplinary records of a remanded accused should not generally be used as aggravating to the sentence.[7] But they can be used to rebut assertions of good character as a mitigating factor.[8]

  1. ↑ R v Thompson, 1989 ABCA 212 (CanLII), 98 AR 348, per Côté JA, at para 4
    R v Spina, 1997 ABCA 235 (CanLII), (1997), 200 AR 133, per Conrad JA, at para 18
  2. ↑ Thompson, supra
  3. ↑ R v Klok, 2014 ABPC 102 (CanLII), per Allen J, at paras 79 to 88
    R v S(B), 1994 CanLII 3881 (SK CA), 125 Sask R 303(Sask CA), per curiam, at para 47
  4. ↑ Klok, supra
  5. ↑ Klok, supra, at paras 87 to 88
  6. ↑ R v Gryba, 2016 SKQB 123 (CanLII), SJ No 218, per Popescul CJ, at para 35
    R v Leroux, 2015 SKCA 48 (CanLII), 9 WWR 709, per Caldwell JA, at para 62
    R v Araya, 2015 ONCA 854 (CanLII), 344 OAC 36, per Laskin JA, at para 29
    R v Gwyn, 2009 ABPC 212 (CanLII), per Fradsham J, at para 16
    R v Deren, 2017 ABCA 23 (CanLII), per Rowbotham JA, at para 5
  7. ↑ R v Clarke-McNeil, 2022 NSSC 63 (CanLII), per Campbell J
  8. ↑ Clarke-McNeil, ibid.

Offender's History of Trauma

The presence of relevant abuse in the offender's history is sometimes found to be mitigating. This is particularly notable in child sexual offences where the offender had a history of abuse upon themselves.[1]

Abuse by Victim

The presence of long-term abuse by the victim can be mitigating.[2]

This may be manifested as "battered woman syndrome".[3]

There can be mitigation where the conduct was "impulsive" or an immediate reaction in response to a perceived (or real) wrong by the victim.[4]

  1. ↑ R v DKDB, 2013 BCSC 2321 (CanLII), per Ballance J, at paras 13, 54
    R v BVT, 2016 BCPC 95 (CanLII), per Brecknell J
  2. ↑ R v Dunlap, 1991 CanLII 2519 (NS CA), 101 N.S.R. (2d) 263, per Matthews JA
    R v Drake, [1995] O.J. No. 4375 (Gen. Div.)(*no CanLII links) online: Quicklaw (OJ)
    R v Cormier, 1974 CanLII 1577 (NS CA), 9 NSR (2d) 687, 22 CCC (2d) 235, per Macdonald JA
  3. ↑ R. v. Phillips, [1992] O.J. No. 2716 (Gen. Div.)
    R. v. Bennett, [1993] O.J. No. 1011 (Prov. Div.)
  4. ↑ R v Kipling, 1992 CanLII 13189 (MB CA), 83 Man. R. (2d) 6, per Scott CJ
    R v McLeod (L.S.), 1994 NSCA 151 (CanLII), 132 NSR (2d) 118, per Freeman JA
    R v Whynot, 1996 NSCA 53 (CanLII), 147 NSR (2d) 111, per Pugsley JA

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]

There mere existence of cultural or customary differences between the accused's culture and Canadian norms cannot be used as an excuse or as mitigation.[2] To do otherwise creates a problem that new immigrants will not recieve "true protection" of the law.[3]

A lack of facility with English has been treated as mitigating in certain circumstances.[4]

  1. ↑ R v Borde, 2003 CanLII 4187 (ON CA), 172 CCC (3d) 225, per Rosenberg JA
    R v Rage, 2018 ONCA 211 (CanLII), per curiam (3:0), at para 13
  2. ↑ R v E(H), 2015 ONCA 531 (CanLII), 336 OAC 363, per Benotto JA, at para 33
    R v Brown, 1992 CanLII 2829 (AB CA), 73 CCC (3d) 242, per curiam re offences of violence or sexual violence
  3. ↑ R v Teclesenbet, 2009 ABCA 389 (CanLII), 469 AR 193, per McDonald JA, at para 9
  4. ↑ R v Huang, [2005] OJ No 1855 (SCJ)(*no CanLII links) , at para 21
    R v Shaliwal, [2011] MJ No 213(Q.B.)(*no CanLII links) , at para 41
    R v Lim, [1990] OJ No 949 (H.C.J.)(*no CanLII links) , per Doherty J
    R v JWS, 2013 NSPC 7 (CanLII), per Derrick J, 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]

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."[4]

  1. ↑ R v Voutsis, 1989 CanLII 4477 (SK CA), 47 CCC 451 (Sask. CA), per Cameron JA
  2. ↑ R v Michel, 1996 CanLII 8363 (BCCA), 133 WAC 237 (BCCA), per Proudfoot JA
  3. ↑ R v Shah, 1994 CanLII 1290 (1994), 94 CCC 45, per Finch JA (2:1)
    R v Maczynski, 1997 CanLII 2491 (BCCA), 120 CCC 221, per Lambert JA
    R v FDM (1995), 29 WBC 148 (AltaCA)(*no CanLII links)
  4. ↑ R v Schmitt, 2014 ABCA 105 (CanLII), per curiam (3:0), at para 11

Criminal Record

See also: Effect of Criminal Records in Sentencing, Notice of Increased Penalty#Proving Prior Record, and Jump, Step and Gap Principles‎

Employment

Medical Conditions and Substance Abuse

Collateral Consequences

Aboriginal Background

See Aboriginal Sentencing Principles and Factors

During Proceedings

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