Legal Sentencing Factors

Mitigating Factors

There are many factors that the Crown and eventually a judge will take into consideration when deciding how to deal with an individual charged with, or convicted of, theft. It is important all factors that you think are relevant and want to be considered are put before the appropriate authorities.

Mitigating factors are those that suggest a sentence should be reduced because of a characteristic that is relevant to either the offence or the offender.

 

When are mitigating factors relevant?

Mitigating factors can be relevant at multiple stages in the criminal justice process.

Initially, knowledge of certain factors or circumstances may impact the Crown’s position on plea, sentence and the availability of alternative sanctions. The Crown is the primary actor in the criminal justice system your lawyer will be negotiating with prior to any formal resolution going before a judge. It can be important for the Crown be aware of mitigating circumstances as they may change how your case is managed.

Mitigating factors are also relevant when a judge is trying to impose a fit and just sentence. Under Section 718.2(a) of the Criminal Code judges are required to increase or reduce a sentence by taking into account aggravating or mitigating circumstances, relevant to the offence or offender. For the most part, the underlying premise that explains the applicability of an aggravating or mitigating factor seem to relate to one of two considerations:

  1. The gravity of the offence as defined by the offender’s culpability and the consequential harm that was caused.
  2. The ways in which character and conduct seem to relate to applicable objectives of sentencing.

Therefore, any factors that affect the gravity of the offence or the character and conduct of the offender may be relevant considerations.

 

What are examples of mitigating factors?

The Criminal Code does not set out any statutory mitigating factors. However, through common law, a number of mitigating factors have been recognized by judges, including:

  1. First Offender – suggests that conviction itself constitutes a punishment and the offender will respond positively to the deterrent effects of the process of arrest, charging, guilt and sanction.
  1. Prior Good Character – often includes achievements and opinions, usually directed to try and show the offence is out of character.
  1. Guilty plea and remorse – extent of the mitigating value is affected by the timing: the earlier, the better.
  1. Evidence of Impairment – impairment of judgment can mitigate since sentencing ought to respond proportionally to culpability. Emotional, physical and psychological impairment can mitigate because these factors affect judgment.
  1. Employment Record – a good record is always mitigating, although it may be diminished or even superceded by the nature of the offence. It demonstrates pro-social responsibility and conformity to community norms, which are the antithesis of crime.
  1. Collateral or Indirect Consequences – offender may suffer physical, emotional, social or financial consequences as a result of the offence that may be mitigating.
  1. Post-Offence Rehabilitative Efforts – progress in dealing with personal problems and efforts to improve one’s social situation are always given mitigating credit.
  1. Unrelated Meritorious Conduct – acts of charity or bravery unrelated to the offence.
  1. Acts of Reparation or Compensation – some mitigation may be appropriate for acts done prior to sentencing.
  1. Provocation and Duress – may reduce the degree of culpability or moral blameworthiness.
  1. Delay in Prosecution – Delay may mitigate (even though not constituting a Charter breach) because it extends the ordinary impact of the sentence.
  1. Gap in Criminal Record and the Intermediate Recidivist – a significant gap in a recidivist’s record indicates an ability to conform to legal norms: it shows rehabilitative potential.
  1. Immaturity – may indicate reduced moral blameworthiness of the offender.
  1. Age – youth or senior offenders may attract a reduced sentence.

 

Aggravating Factors

There are many factors that the Crown and eventually a judge will take into consideration when deciding how to deal with an individual charged with or convicted of theft. It is important all factors that you think are relevant and want to be considered are put before the appropriate authorities.

Aggravating factors are those that suggest a sentence should be increased because of a characteristic that is relevant to either the offence or the offender.

 

When do aggravating factors impact the criminal justice system?

Aggravating factors can be relevant at multiple stages in the criminal justice process.

Initially, knowledge of certain factors or circumstances may impact the Crown’s position on plea, sentence and the availability of alternative sanctions. The Crown is the primary actor in the criminal justice system your lawyer will be negotiating with prior to any formal resolution going before a judge. The presence of certain aggravating factors (for example theft against your employer) may make it unlikely that the Crown would approve diversion in your case.

Aggravating factors are also relevant when a judge is trying to impose a fit and just sentence. Under Section 718.2(a) of the Criminal Code judges are required to increase or reduce a sentence by taking into account aggravating or mitigating circumstances, relevant to the offence or offender. For the most part, the underlying premise that explains the applicability of an aggravating or mitigating factor seem to relate to one of two considerations:

  1. The gravity of the offence as defined by the offender’s culpability and the consequential harm that was caused.
  2. The ways in which character and conduct seem to relate to applicable objectives of sentencing.

Therefore, any factors that affect the gravity of the offence or the character and conduct of the offender may be relevant considerations.

 

How do aggravating factors get before the court?

There are a number of ways that aggravating factors may become known. They may necessarily be part of the circumstances of the offence (i.e. if the offence involved theft in a position of trust).

Aggravating factors may also become known because you or your counsel disclose them to the Crown or the court in order to try and pre-empt negative consequences if they are learned in another manner. Any decision to disclose aggravating factors in negotiations or other proceedings should be carefully discussed with counsel.

Aggravating factors may also be revealed in the course of criminal proceedings through the testimony or statements of witnesses.

If the Crown seeks to introduce an aggravating factor that has not been proven beyond a reasonable doubt during the course of the trial at your sentencing hearing, the Crown will be required to prove the existence of the aggravating factor beyond a reasonable doubt.

 

What are examples of aggravating factors?

There are a number of aggravating factors laid out in the Criminal Code that a judge is required to consider, including:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;

Under the Criminal Code, the gravity of an offence is increased when it manifests a rejection of equal respect or an abuse of power against a vulnerable individual, or when it is motivated by a wrongful assertion of power.

 

There are also a number of factors that have been judicially recognized as aggravating, including:

  1. Previous convictions,
  2. Actual or threatened violence or use of weapon,
  3. Cruelty or brutality,
  4. Substantial physical injuries or psychological harm,
  5. Offence committed while subjected to judicially imposed conditions,
  6. Multiple victims or multiple incidents,
  7. Group or gang activity,
  8. Impeding victim’s access to the justice system,
  9. Substantial economic loss,
  10. Planning and organization,
  11. Vulnerability of the victim, and
  12. Deliberate risk taking.

If any of these factors apply to criminal charges you are facing, the consequences of a conviction may be more severe. A lawyer can help advise you about how you should proceed at your next court appearance.

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