Simon's Megalomaniacal Legal Resources

Criminal - Sentencing - Principles (2)

. R. v. Di Paola [Crown duties]

In R. v. Di Paola (SCC, 2025) the Supreme Court of Canada allows a Crown sentencing appeal, here brought against the Quebec CA where "it intervened to reduce the respondent’s [SS: trial] sentence so that the aggravating factors relating to consideration were not taken into account".

Here the court canvasses duties of the Crown in the criminal sentencing context:

[60] The case law already lays down duties that rest on the prosecution in the criminal justice process, and the procedural safeguards set out in s. 11 of the Canadian Charter of Rights and Freedoms apply post‑conviction (R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at para. 11). These general principles therefore apply in the context of the procedure established in s. 725(1)(c).

[61] The Crown must generally avoid any conduct that would result in unfairness to the offender (Larche, at para. 46). This means, among other things, that in the application of s. 725(1)(c), the Crown must, in a timely manner, inform the offender and the sentencing judge of the facts it intends to prove as aggravating factors during the submissions on sentencing. Although the offender’s consent is not required for s. 725(1)(c) to apply, this provision cannot be used by the Crown to ambush the offender. The Crown must act in such a way as to avoid surprising the offender so that the offender can know the jeopardy they face and respond effectively (R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at paras. 34‑36).

[62] In R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, this Court recognized that an offender has certain fundamental procedural rights at the sentencing stage, including the right to test the prosecution’s evidence and the right to present their own evidence:

To my mind, the facts which justify the sanction are no less important than the facts which justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked. “It would appear well established that the sentencing process is merely a phase of the trial process” ([J. A. Olah, “Sentencing: The Last Frontier of the Criminal Law” (1980), 16 C.R. (3d) 97], at p. 107). Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial: he has a right to counsel, a right to call evidence and cross‑examine prosecution witnesses, a right to give evidence himself and to address the court. [p. 415]

[63] The Crown must refrain from acting in a manner that prevents the offender from exercising their rights in the sentencing process, for example by failing to disclose the identity of the witnesses it intends to call.

[64] In the context of a plea agreement, the offender must be informed of the Crown’s intention to rely on s. 725(1)(c) before the agreement is entered into. The Crown’s failure to inform the offender that the jeopardy they face is greater than they had anticipated when pleading guilty will generally justify declining to apply s. 725(1)(c) (R. v. Truong, 2013 ABCA 373, 304 C.C.C. (3d) 303; Ruby, at §3.97). However, certain exceptional situations might arise. For example, new facts might be brought to Crown counsel’s attention between the time the guilty plea is entered and the sentencing hearing.

[65] These general duties of conduct on the part of the Crown are neither rigid nor exhaustive. In every case, the Crown is expected to conduct itself fairly. It will be up to the sentencing judge to exercise their discretion to apply or not to apply s. 725(1)(c) in light of the circumstances of each case in order to avoid any unfairness to the offender (Larche, at para. 46).

. R. v. Di Paola

In R. v. Di Paola (SCC, 2025) the Supreme Court of Canada allows a Crown sentencing appeal, here brought against the Quebec CA where "it intervened to reduce the respondent’s [SS: trial] sentence so that the aggravating factors relating to consideration were not taken into account".

Here the court summarizes basics of criminal sentencing:

[39] Sentencing is one of the most delicate stages of the criminal justice process (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 1). As this Court noted in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, “[t]he determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community” (para. 91).

[40] The fundamental principle that underlies all sentencing is proportionality (s. 718.1 Cr. C.; R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 50; Lacasse, at para. 12; M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2025 (32nd ed. 2025), at para. 47.49). A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender (R. v. Hills, 2023 SCC 2, at paras. 56‑59; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37). It must also “be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender” (s. 718.2(a) Cr. C.). As the Court explained in Hills:

The offender’s moral culpability or degree of responsibility should be measured by gauging the essential substantive elements of the offence including the offence’s mens rea, the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence, and aspects of the offender’s background that increase or decrease the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity . . . . [para. 58]

[41] Sentencing is an individualized process, which brings a myriad of factors into play (Lacasse, at paras. 58‑60; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 22; Nasogaluak, at para. 43). It requires the court to take into account not only the circumstances of the offence but also the particular circumstances of the offender. For this reason, “the objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances, character and reputation of the accused is before the court” (Angelillo, at para. 22).

. R. v. Gilmore

In R. v. Gilmore (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal sentence appeal, here which "illustrates the tension between the principle of proportionality and the objective of public protection".

Here the court considers the "Purpose, Objectives and Principles" of criminal sentencing, including proportionality and public protection:

(2) The Purpose, Objectives and Principles of Sentencing

[32] Part XXIII – Sentencing of the Criminal Code addresses both substantive and procedural aspects of sentencing. The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [Emphasis added.]

[33] These objectives are largely utilitarian in nature, and in service of the stated fundamental purpose of sentencing: Julian V. Roberts and Andrew Von Hirsch, “Legislation the Purpose and Principles of Sentencing”, in Julian Roberts and David P. Cole, Making Sense of Sentencing (Toronto: University of Toronto Press, 1999), at pp. 52-53. A number of these objectives were in play in this case, particularly denunciation (s. 718(a)), deterrence (s. 718(b)), separating offenders from society, where necessary (s. 718(c)), and rehabilitation (s. 718(1)(d)).

[34] Parliament has identified the “fundamental principle” of sentencing in s. 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The proportionality principle is rooted in retributive or desert-based theories of punishment that define a just sanction as one that is deserved by an offender, based solely on the seriousness of the offence and an offender’s moral blameworthiness: see Benjamin L. Berger, “Proportionality and the Experience of Punishment”, in David Cole & Julian Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (Toronto: Irwin Law, 2020), at p. 369. In Canada, proportionality operates as a restraint or limitation on punishment: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.

[35] Proportionality is not a self-applying concept; nor does it operate in a vacuum: Friesen, at paras. 33, 39; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 11; and J.W., at para. 46. Rather, section 718.2 identifies “other sentencing principles” or “secondary principles” (Parranto, at para. 10) that sentencing judges “shall” consider “in giving effect to proportionality”: J.W., at para. 44. The section provides for the principle of individualization, that a sentence “should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” Moreover, s. 718.2(b) identifies the parity principle, which explains that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

[36] The fundamental principle of proportionality in s. 718.1, and the secondary principles of sentencing in s. 718.2, operate within the broader framework of sentencing in Part XXIII. In this regard, the Supreme Court of Canada has highlighted the opening words of s. 718: “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…” (emphasis added): see, e.g., Friesen, at para. 122; J.W., at paras. 39-40. In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, Karakatsanis J. wrote, at para. 33: “It is clear from the plain language of s. 718 that public protection is part of the very essence of the purpose and principles governing the sentencing process” (emphasis added). Proportionality acts as a brake to ensure that, in the pursuit of public protection measures, including deterrence and denunciation, sentences are not unduly excessive; but it does not remove public protection from the equation, nor does it nullify the objectives of sentencing in s. 718.

[37] The public protection purpose of sentencing is most clearly evident in Part XXIV – Dangerous and Long-Term Offenders of the Criminal Code: L.M., at para. 42. As LeBel J. explained in Ipeelee, at para. 48:

Reading the Criminal Code and the [Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”)] and the applicable jurisprudence together, we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of reoffence, and (2) rehabilitating the offender and reintegrating him or her into the community. The latter objective may properly be described as the ultimate purpose of an LTSO, as indicated by s. 100 of the CCRA, though it is inextricably entwined with the former.

. R. v. E.N.

In R. v. E.N. (Ont CA, 2024) the Ontario Court of Appeal considered principles of criminal sentencing:

[14] With respect to the trial judge’s weighing of the relevant mitigating and aggravating factors, on appellate review, we are mindful of the Supreme Court’s instructions in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26, citing R. v. McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35: “The weighing or balancing of factors can form an error in principle ‘[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably’”. The Court goes on to say that even if the trial judge commits such an error in principle, “an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence”.

....

[19] While the sentence imposed by the trial judge is lower than the 3 to 5-year range articulated in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721 and other cases, it is not demonstrably unfit. As the Supreme Court cautioned in Lacasse, sentencing ranges are tools for busy trial judges, not straightjackets. The trial judge gave adequate reasons for a “slight downward departure” from the 3 to 5-year range. His sentence is owed significant deference on appellate review. We see no basis to intervene.

. R. v. E.H.

In R. v. E.H. (Ont CA, 2023) the Court of Appeal considered general sentencing principles:

[26] Sentencing is a highly discretionary and fact-driven process. “[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

[27] As Laskin J.A. explained in R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 31 O.R. (3d) 713 (C.A.), at p. 719:

Error in principle is a familiar basis for reviewing the exercise of judicial discretion. It connotes, at least, failing to take into account a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to relevant factors, overemphasizing relevant factors and, more generally, it includes an error of law. [Citations omitted.]

. R. v. Morris

In R. v. Morris (Ont CA, 2023) the Court of Appeal briefly reviews elements of a judge's consideration on criminal sentencing:

[31] In fashioning the appropriate sentence, the sentencing judge reviewed the principles of sentencing set out in s. 718 of the Criminal Code: ensuring proportionality between the gravity of the offence and the degree of responsibility of the offender, accounting for aggravating and mitigating factors, and considering parity. She also referred to the purposes of sentencing of specific and general deterrence, rehabilitation, denunciation and the need to separate the offender from society, with the focus on denunciation and deterrence for firearms offences. In this case, specific deterrence was pertinent because the appellant was a recidivist offender.

. R. v. Bertrand Marchand

In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].

In this quote the court states basic law respecting criminal sentencing:

[27] A fit and proportionate sentence must be crafted based on the particular facts of the case and in light of existing legislation and case law (R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43). Pursuant to s. 718.1 of the Criminal Code, it is a fundamental principle that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender (see also R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089). Section 718.2 enumerates a number of other sentencing principles, including the consideration of aggravating and mitigating circumstances and parity in sentencing.

. R. v. Smith

In R. v. Smith (Ont CA, 2023) the Court of Appeal considered a 'dangerous offender' on the meaning of the statutory phrasing "pattern of persistent aggressive behaviour" [CCC s.753(1)(a)(ii)]. Here the court notes that hearsay may be admissible in a sentencing hearing:

[83] ... As with any sentencing hearing, hearsay evidence is admissible in a dangerous offender proceeding provided it is “credible and trustworthy”: Williams (ONCA), at paras. 48-49; R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at p. 414.

. R. v. D.N.

In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions.

In this quote the court comments on some useful sentencing principles:

[123] However, while a sentence begins on the day it is imposed, in R. v. Walker, 2017 ONCA 39, at paras. 14 to 28, this court explained that a sentence will nonetheless be illegal if the sentence imposed plus pre-sentence custody exceeds the maximum allowable sentence under the Criminal Code.

. R. v. D.N.

In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions.

In this quote, the court comments on resolution of substantive variation between the judge's endorsement and reasons for decision, here on the issue of sentencing:

[118] Counsel acknowledge that where there is a discrepancy of this type in the quantum of the sentence imposed between a trial judge’s reasons and the endorsement on the indictment, the trial judge’s intention should govern and can be assessed through reference to all of the reasons, the indictment and the warrant of committal. See R. v. Krouglov, 2017 ONCA 197, at paras. 35-40, and R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 216 O.A.C. 252, 82 O.R. (3d) 772, at paras. 26-31.