Gardiner Hearings: Evidence at Sentencing Hearings

Sentencing is part of the trial process. It is no surprise then that certain procedural rights that exist for the accused at earlier parts of the trial, exist at the sentencing phase: the right to counsel, the right to call evidence and cross-examine prosecution witnesses, the right to give evidence him/herself and to address the court. At sentencing, a court is not bound by the same strict rules of evidence that guide the process of determining guilt or innocence.  Flexibility is key.  The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base the sentence.  For instance, hearsay evidence may be accepted where it is found to be credible and trustworthy.  When an accused enters an early guilty plea there will have been no trial and thus no findings of fact by the court.  It is not unusual in such situations for counsel to provide the court with the evidence for sentencing through informal oral submissions. However, when a sentencing court is confronted with conflicting submissions, material, or assertions surrounding the commission of the offence or the personal circumstances of the accused, the court must not simply accept the Crown's version of these unproven facts.  It must hold a formal hearing of the evidence (known as a Gardiner hearing), at which time the facts in dispute must be proven. The Gardiner evidentiary hearing usually involves the calling of witnesses and the hearing of their testimony, as well as the cross-examination of these witnesses.  While the Gardiner hearing may look like a trial, the admissibility of evidence is subject to rules particular to the sentencing process. Section 724(3) of the Criminal Code provides that the party wishing to

By |June 19th, 2019|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Gardiner Hearings: Evidence at Sentencing Hearings

Jumping the Crown’s Position on Sentence

A trial judge always retains an overriding discretion to accept or reject the recommendations of counsel about the sentence that should be imposed. A trial judge is entitled to go beyond the Crown’s position on sentence if the sentence imposed is still reasonable. But when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions and provide further authorities. Ideally, the sentencing judge should give reasons for going beyond the Crown’s position. R. v. Grant, 2016 ONCA 639, at para. 164;  See also, R. v. Ibrahim, 2011 ONCA 611, at para. 16 [where reasons were not required]. It is an error in principle for the sentencing judge not to give the parties a chance to make further submissions prior to imposing a sentence above the Crown’s position. R. v. Hagen, 2011 ONCA 749 (CanLII), at para. 5;  R. v. Menary, 2012 ONCA 706 (CanLII), 298 O.A.C. 108, at para. 3; R. v. Ibrahim, 2011 ONCA 611 (CanLII);  See also, R. v. Ipeelee, 2018 ONCA 13. This error in principle entitles an appellate court to consider afresh what constitutes a fit sentence for the offender.

By |January 13th, 2018|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Jumping the Crown’s Position on Sentence

Apologies in the Age of the Internet

An apology is one means by which an offender can demonstrate his/her remorse and take personal responsibility for wrongdoing.  The capacity of human beings who have erred to recognize the magnitude of their wrongdoing, and to redeem themselves, offers perhaps the best hope that those who have committed crimes will not repeat them.  Sincere apologies have significance, not only for courts (as they provide at least some assurance of the redirection of the offender) but also for some victims.Before determining the sentence to be imposed, the sentencing court is required to ask whether the offender has anything to say (section 726, Criminal Code).  If the offender takes this opportunity to acknowledge responsibility and apologize to his victim, he will usually find himself apologizing at a time when the victim is not physically present in court to hear the apology. In the age of the internet, an offender who wishes to make a written apology to a victim of his crime now takes a risk that the victim may post that apology on the internet.  Though that risk may be low, and one should not presume that a victim of a crime will broadcast a written apology across the internet, there is nothing stopping a victim from doing so, per se. Information put online can have unknown permanence.   An offender, particularly a young offender, should be entitled to closure at some point in time. Further, the risk of internet exposure can be a disincentive to conveying an apology.  Written Apologies and Probation Orders Where the offender is subject to a probation order, one novel way of addressing these challenges is by the inclusion of a condition such as the following: “That the offender prepare a letter

By |November 7th, 2017|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Apologies in the Age of the Internet

Appeal Court Gets Creative Around Consecutive Sentences

Consecutive or concurrent sentences.The first step a sentencing judge must take when required to sentence on multiple offences is to determine whether any or all of the sentences are to be served concurrently or consecutively. This question and the decision does not relate to the overall length of sentence.  Rather, they pertain to the nature and circumstances of the criminal activity under consideration and the connectedness of two or more offences to each other.See for instance, R. v. Maroti (M.), 2010 MBCA 54 (CanLII).   Risk of Deportation as a Factor on Sentence Under section 36(1)(1) of the Immigration and Refuge Protection Act, a permanent resident or foreign national is inadmissible on grounds of serious criminality whereupon he/she is convicted of ·         federal offence (which includes any offence in the Criminal Code or the Controlled Drugs and Substances Act) punishable by a maximum term of at least 10 years’ imprisonment, or ·         a federal offence for which a term of imprisonment of more than 6 months has been imposed. The risk of deportation can be a factor to be taken into account in choosing appropriate sentencing dispositions and in tailoring the sentences to fit the crime and the offender. See R. v. Hamilton (2004), 72 O.R. (3d) 1, at para. 156 (C.A.). At the same time, courts cannot impose inadequate or artificial sentences in an inappropriate attempt to circumvent problems at will in immigration matters. See R. v. Bhadwar, 2011 ONCA 266, at para. 45.  In R. v. Regis, 2017 ONCA 848 the Court of appeal for Ontario -- taking into account the fact that were the appellant to be sentenced to a period of incarceration of 6 months or more he would be subject

By |November 6th, 2017|Categories: Sentencing, Stuart O'Connell Criminal Blog|Comments Off on Appeal Court Gets Creative Around Consecutive Sentences

Departing from a Joint Submission on Sentence (“Jumping the Joint”)

It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty.  Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large.  Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty.  Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them.  In such cases, trial judges need a test against which to measure the acceptability of the joint submission.  The question is: What test?  That question was answered by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43.The Legal Test for the Rejection of a Joint Sentencing SubmissionWould the proposed sentence bring the administration of justice into disrepute, or is it otherwise contrary to the public interest.Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.  This is an undeniably high threshold.Thus, a sentence which would otherwise be considered demonstrably unfit absent a joint submission may nonetheless be acceptable in the context of one.PROPER PROCEDURE FOR COURTS TO FOLLOWWhen faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused. 

Reasons for Sentence

A trial judge is not required to give a detailed explanation of why he or she arrived at one number (say, 3 ½ years custody), as opposed to another (say, 2 or 2 ½ years custody), apart from justifying why the sentence is fit in the circumstances of the case, having regard to all the principles of sentencing: see  R. v. Anang, 2016 ONCA 825.I take from this that an appellate court will give some deference to the trial judge's location of a sentence so long as it falls within the appropriate sentencing range.

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