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Criminal - Sentencing - Other Offences [CCC 725]. 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 considers the operation of CCC 725(1)(c) ['Sentencing - Procedure and Evidence - Other offences']:[33] An interpretation of s. 725(1)(c) based on the modern approach to statutory interpretation, that is, based on its text, its context and its purpose (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26), does not support the conclusion that Parliament intended to exclude any facts related to a separate charge that has already been laid from the scope of s. 725(1)(c).
[34] Section 725 of the Criminal Code provides as follows:725 (1) In determining the sentence, a court
(a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;
(b) shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;
(b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:
(i) the Attorney General and the offender consent,
(ii) the court has jurisdiction to try each charge,
(iii) each charge has been described in open court,
(iv) the offender has agreed with the facts asserted in the description of each charge, and
(v) the offender has acknowledged having committed the offence described in each charge; and
(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.
(1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.
(2) The court shall, on the information or indictment, note
(a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and
(b) any facts considered in determining the sentence under paragraph (1)(c),
and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal. [35] Section 725 is in Part XXIII of the Criminal Code, which deals with sentencing. It allows the court to consider, in determining the sentence, offences other than the one for which the sentence must be determined. In addition to any other offences of which the offender was found guilty by the same court (s. 725(1)(a) Cr. C.), the sentencing judge is also required to consider any outstanding charges against the offender to which the offender pleads guilty (s. 725(1)(b) Cr. C.) and, subject to certain conditions, any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution would be in the public interest (s. 725(1)(b.1) Cr. C.).
[36] As an exception to the general principle that “[o]ffenders are punished . . . only in respect of crimes for which they have been specifically charged and of which they have been validly convicted” (Larche, at para. 1), s. 725(1)(c) allows the court to consider “any facts forming part of the circumstances of the offence” that “could” constitute the basis for a separate charge. The notion of “facts forming part” was described as follows in Larche:Both res gestae and the phrase “while committing” are narrower than the expression “facts forming part of the circumstances of the offence” employed in s. 725(1)(c). The “circumstances” of an offence are more than the immediate transaction in the course of which it transpires. Thus, in addition to encompassing the facts of a single transaction, s. 725(1)(c) also applies, in my view, to the broader category of related facts that inform the court about the “circumstances” of the offence more generally.
“Facts” (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct. [paras. 54‑55] This description is still valid, and determining whether facts form part of the circumstances of the offence always requires a “case‑by‑case” analysis (Larche, at para. 50).
[37] For s. 725(1)(c) to apply, the facts forming part of the circumstances of the offence must be capable of constituting the basis for a separate charge. In the French version of the provision, the conjugation of the verb “pouvoir” in the present conditional (“pourrait être fondée”) is indicative of Parliament’s intention. It suggests the existence of a possibility. The English version of s. 725(1)(c) uses the term “could”, which also implies the existence of a possibility. Section 725(1)(c) thus provides that the facts the court can consider must be capable of constituting the basis for a separate charge at the time the provision applies, that is, at the time of sentencing. The prospective nature of s. 725(1)(c) was recognized in Larche when Fish J. wrote, at para. 20, that “[s]ection 725(1)(c) . . . allows the court to take into consideration facts that could constitute the basis for a separate charge that has not — or at least not yet — been laid” (emphasis added; emphasis in original deleted). This passage is consistent with the grammatical and ordinary meaning of the text of s. 725(1)(c), according to which it must remain possible at the time of sentencing for the facts forming part of the circumstances of the offence to constitute the basis for a separate charge.
[38] Section 725(1)(c) says nothing about how to deal with facts forming part of the circumstances of the offence that, in the past, constituted the basis for one or more charges that are no longer pending and on which no verdict has been rendered. There is nothing to suggest that such facts are excluded from the scope of this provision. Parliament could have introduced such a condition, but it did not do so. The only condition it inserted into this provision is that the facts considered must be those “forming part” of the circumstances of the offence. Accordingly, an analysis of the text of s. 725(1)(c) does not support the narrow interpretation that the respondent wishes to give it.
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[42] It was from this perspective that Parliament enacted s. 725, the general purpose of which is to allow the court to consider, as aggravating factors, offences other than the one for which a sentence must be determined. Paragraphs 725(1)(a) and (b) require the court to consider any other offences of which the offender was found guilty or for which the offender has admitted guilt. The court is also required to consider, subject to certain conditions, any outstanding charges against the offender (s. 725(1)(b.1)). Section 725(1)(c) completes s. 725 by making sure that facts that, for one reason or another, are not the subject of either a verdict or charges at the time of sentencing can also be considered if they are relevant and they allow the court to fully appreciate the circumstances of both the offence and the offender.
[43] Because the consideration of aggravating factors generally entails the imposition of a more severe sentence on the offender, the application of s. 725(1)(c) is not without risks, especially since it does not require the consent of either the Attorney General or the offender themself. To address these risks, Parliament has attached robust procedural safeguards to s. 725(1)(c).
[44] First, the application of s. 725(1)(c) requires that the facts related to the separate charge in question be proven beyond a reasonable doubt, in accordance with the principle of the presumption of innocence (s. 724(3)(e) Cr. C.; Larche, at para. 44). It is therefore not sufficient for the prosecution simply to raise the facts forming part of the circumstances of the offence that could constitute the basis for the separate charge at the sentencing stage; the prosecution must also prove them in court if the offender does not admit them, and the offender can present their own evidence regarding those facts (s. 723(1) to (3) Cr. C.).
[45] Second, s. 725(2)(b) of the Criminal Code introduces protection against double jeopardy by stating that any facts considered by the judge in determining the sentence under s. 725(1)(c) must necessarily be noted on the information or indictment. Subsequently, “no further proceedings may be taken with respect to any offence ... disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal” (s. 725(2) Cr. C.). As the Court explained in Larche:This protection is essential, since the usual safeguards would not apply: The accused, if later charged with offences considered by the trial judge under s. 725(1)(c), could neither plead autrefois convict nor, unless charged with what is found to be “the same delict”, invoke the rule against multiple convictions set out in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. [para. 26] [46] In sum, the context of s. 725(1)(c) weighs in favour of the inclusion of any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge, regardless of whether such a charge has already been laid. In light of the principles of sentencing, there is no principled reason for excluding relevant facts from the scope of s. 725(1)(c) solely because a charge based on those facts was already laid and then withdrawn. Those facts do not lose their relevance as aggravating factors for the purposes of s. 725(1)(c), and their consideration is subject to certain procedural safeguards. Whether they have constituted the basis for a separate charge or not, those facts fall within s. 725’s purpose of enabling the court to assess all the circumstances of both the offence and the offender in order to impose a fit and appropriate sentence.
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[58] In short, the only interpretation consistent with the text, context and purpose of s. 725(1)(c) is the one advanced by the appellant. Section 725(1)(c) gives the court the discretion to consider, as aggravating factors, any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge, regardless of whether such a charge has been laid. This provision is applicable both following a trial and in the context of a guilty plea, to the extent that the charge remains possible at the time of sentencing. The robust procedural safeguards put in place by Parliament allow both the Crown and the offender to benefit from the application of s. 725(1)(c) without there being any unfairness or prejudice to the offender. . 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". This case considered whether CCC 725(1)(c) ['Sentencing - Procedure and Evidence - Other offences'], which addresses whether a sentencing court "may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge" - here when that charge has already been laid.
Here the court summarizes the case:[1] Sentencing is a delicate and complex exercise. It requires the sentencing judge to consider all of the circumstances surrounding the commission of the offence, including the aggravating or mitigating factors relating to the offence, in order to arrive at a fit and appropriate sentence. To this end, Parliament introduced s. 725(1)(c) into the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), to give courts the discretion to consider, as aggravating factors, any facts that form part of the circumstances of the offence for which the sentence is being determined and that could constitute the basis for a separate charge.
[2] This appeal concerns the applicability of s. 725(1)(c) in circumstances where such facts have already constituted the basis for a separate charge but where, at the time of sentencing, that charge is no longer pending and no verdict has been rendered on it. The Court must determine whether, as the Quebec Court of Appeal held in this case, s. 725(1)(c) applies only when the facts in question have never constituted the basis for a separate charge.
[3] The respondent, Enrico Di Paola, is a construction contractor who was charged with, among other things, giving a reward, advantage or benefit to an official in return for lucrative contracts with the École des métiers de la construction de Montréal (“EMCM”), contrary to s. 121(1)(a)(i) and (iii) of the Criminal Code. Under an agreement entered into with counsel then representing the Crown, the appellant in this appeal, that count was abandoned in exchange for a guilty plea on a charge of conferring an advantage or benefit on an official of the government without authorization (s. 121(1)(b) Cr. C.). The sentencing judge considered the existence of the contracts awarded by the EMCM to the respondent’s company as an aggravating factor and imposed a 15‑month conditional sentence on the respondent.
[4] In its decision reversing the trial judgment in part, the Quebec Court of Appeal interpreted R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, in which this Court analyzed s. 725(1)(c) for the first time, as limiting the application of this provision to cases in which the facts forming part of the circumstances of the offence have never constituted the basis for a separate charge. The Court of Appeal found that the sentencing judge had made an error in principle by accepting, as aggravating factors, the facts related to the offence under s. 121(1)(a)(i) and (iii), for which a charge had previously been laid but had not been renewed. The court reduced the conditional sentence to six months.
[5] The appellant submits that s. 725(1)(c) should not be interpreted so narrowly because, in addition to not being consistent with the text, context and purpose of this provision, such an interpretation would be detrimental to the justice system, which encourages the making of plea agreements, under which the withdrawal of charges is common. If the Court accepts his argument, the appellant invites us to clarify the duties of fairness that lie on the prosecution when the provision in question applies.
[6] At the hearing, a majority of the Court allowed the appeal, with reasons to follow. These are those reasons.
[7] This Court’s judgment in Larche does not deal specifically with circumstances like those of this case. An interpretation of s. 725(1)(c) based on the modern approach to statutory interpretation leads to the conclusion that this provision does not exclude from its scope any facts forming part of the circumstances of the offence that have constituted the basis for a separate charge. Interpreting s. 725(1)(c) as having the effect of excluding such facts from its scope could potentially limit the use of the important efficiency tool that plea bargaining represents in the criminal justice system. The application of s. 725(1)(c) in the plea bargaining context can have significant benefits for both the Crown and the accused, in addition to reducing the number and complexity of trials.
[8] Section 725(1)(c) has robust procedural safeguards attached to it, and its application relies upon the court’s exercise of its discretion. In addition, in the context of the adversarial process, Crown counsel are subject to duties of fairness that include the duty to act in good faith and to avoid any sharp practice. These protections limit the risk that the application of this provision will result in unfairness or prejudice to the offender.
[9] For these reasons, we are of the view that the Court of Appeal erred in interpreting s. 725(1)(c) and that its decision must be set aside. The sentence imposed by the Quebec Superior Court is restored. . R. v. Chizanga
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments. Here the court considers the use of evidence of 'untried offences' (Larche errors) in sentencing [here CCC 718.2 and 725]:(a) The trial judge did not commit a Larche error
[118] Section 725(1) of the Criminal Code provides certain circumstances in which evidence of untried offences can be considered by a sentencing judge as aggravating factors pursuant to s. 718.2(a). Under s. 725(1)(c), a sentencing judge may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. In Larche, the Supreme Court set out the test for when a trial judge may resort to s. 725(1)(c) where an accused does not consent. A trial judge can rely on s. 725(1)(c) where: 1) the facts of the untried conduct could constitute a separate charge; 2) the facts have been proven beyond a reasonable doubt; 3) the facts are related to the offence before the court (i.e., there is a sufficient nexus or connexity); and 4) there is no unfairness to the accused.
[119] In Larche, Fish J. commented that in determining whether there is a sufficient nexus between the untried conduct and the offence, courts should give appropriate weight to their proximity in time and to their “probative worth as evidence of system or of an unbroken pattern of criminal conduct”: at para. 55. .... . R. v. Hoang
In R. v. Hoang (Ont CA, 2024) the Ontario Court of Appeal considered CCC 725 [Sentencing - Procedures and Offences - Other Offences] sentencing issues:(a) The trial judge did not err in considering uncharged offences under s. 725(1)(c) of the Criminal Code
[64] The appellant testified to participating in the trafficking operation for two years prior to being apprehended. The trial judge considered this fact, and the evidence of the sale of volumes of narcotics in the past for which no charges had been laid, as a further aggravating factor, pursuant to s. 725(1)(c) of the Criminal Code and the Supreme Court of Canada’s decision in R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762. The appellant alleges that this was unfair.
[65] Section 725(1)(c) permits a court to consider “any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” The conditions for applying s. 725(1)(c), as set out in Larche, at paras. 45-46, are: (i) the uncharged offences must themselves be proved beyond a reasonable doubt; (ii) there must be a close connection between such offences and the ones for which the accused is being sentenced; and (iii) there must be no unfairness to the accused in considering this circumstance. See also R. v. Shin, 2015 ONCA 189, 322 C.C.C. (3d) 554, at paras. 91-92 and 96. The trial judge found that all of these conditions were satisfied in this case.
[66] I see no error in the trial judge’s consideration of the appellant’s own testimony of involvement in drug trafficking or in his application of the Larche criteria.
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