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If you have no prior criminal history, the Crown will take this into consideration when determining how to pursue your case. The fact that you have no criminal history will be an important factor at various stages of your case. For example, it is considered when the Crown determines whether or not to proceed with prosecution. The Crown can decide on the basis of a person’s lack of criminal history, as well as other factors, that prosecution is not necessary and instead seek alternative measures such as a stayed or withdrawn charge, in exchange for community service, charitable donation, etc.

A person’s lack of criminal history is also one of the factors the Crown may consider in determining whether to prosecute by way of summary conviction or by indictment.

Most prominently, the fact that the accused is a first time offender comes up at the sentencing stage. A lack of criminal history is considered a major mitigating factor, which would serve to reduce a person’s sentence.

Frequently Asked Questions

What are Mitigating Factors?
What are some examples of Mitigating Factors for a Conviction or Charge of Assault?
When are Mitigating Factors relevant?
What are Aggravating Factors?
What are some examples of Aggravating Factors for a Conviction or Charge of Assault?
When are Aggravating Factors relevant?

What are Mitigating Factors?

Mitigating Factors are factors that are taken into account by the Crown in determining how to pursue an accused’s case.

Mitigating Factors will be considered in the Crown’s decision whether or not to prosecute. If the factors are compelling enough, the Crown can decide, instead of seeking a trial, to seek other resolutions to your case such as withdrawing charges or seeking a discharge, in exchange for community service, committing to a rehabilitation program, making a charitable donation, etc.

If the Crown does decide to prosecute, and the offence you are charged with can be prosecuted by summary conviction or by indictment, the Crown will consider Mitigating Factors in deciding between the two. If the Mitigating Factors are strong enough, the Crown can decide to prosecute by summary conviction, which carries with it a smaller possible penalty.

Finally, Mitigating Factors are considered when determining a person’s sentence. The sentence must be reduced in accordance with such factors. There are a number of categories of Mitigating Factors that can be taken into account at the sentencing stage. These include the accused’s personal circumstances such as age, criminal history, mental health, effect on immigration, degree of remorse, etc. See below for a more detailed list of examples of Mitigating Factors.

What are some examples of Mitigating Factors for a Conviction or Charge of Assault?

Mitigating Factors fall into several categories – accused’s personal circumstances, circumstances relating to the offence, and circumstances relating to the proceedings. Aside from the last category, the factors that can be considered are generally the same whether they are considered outside of the sentencing stage or during the sentencing stage, with a few differences reflecting the nature of proceedings at that stage.

Personal circumstances:

  • Whether the offender has a prior criminal history
  • Offender’s remorse
  • Whether offender poses a risk to the community
  • Whether offender has undertaken rehabilitative measures
  • Whether offender is facing other charges
  • Offender’s age/education/employment history, and other background information.
  • Whether client had good post-offence conduct
    • Complied with release orders
    • Voluntarily attended police station if there was a warrant involved
  • At the sentencing stage:
    • Mental health – where mental health is not so severe as to remove criminal culpability from the offender, it can still be considered as a mitigating factor during sentencing
    • Effect on immigration – risk of deportation can be a factor considered during sentencing.

Circumstances relating to the offence:

  • At the pre-trial stage
    • Whether the matter would proceed summarily;
    • Whether a minimum punishment is prescribed;
    • Whether the offence usually results in a sentence of imprisonment;
    • Whether a conditional sentence is available;
    • The impact on the victim(s), including the potential or actual harm to the victims(s) or to society in general;
    • The views of the enforcement agency or the investigative body;
    • Any of the factors considered during sentencing (below)
  • During sentencing:
    • Offender’s role in the offence
    • Absence of injuries
    • Absence of property loss
    • Incident was an isolated event
    • Victim’s full recovery from injuries
    • Motive – e.g. if person did not intend to cause injury to the other person.

Circumstances relating to proceedings (considered during sentencing):

  • Offender pled guilty early
  • Bail conditions – e.g. if offender has been subject to house arrest
  • Pre-trial custody – if offender was in custody prior to trial, credit can be given for time spent in custody.

When are Mitigating Factors relevant?

As described in question 2, Mitigating Factors come up in several stages of a person’s case. Most prominently, they come up when the Crown makes a decision on whether to prosecute, whether to prosecute by summary conviction or indictment, and during sentencing.

What are Aggravating Factors?

Aggravating Factors are the opposite of Mitigating Factors. In the pre-trial phase, they contribute to the Crown’s decision whether to prosecute and seek punitive measures. If the Aggravating Factors are strong enough, the Crown will prosecute. Similarly, if they are strong enough, the Crown will seek a stronger punishment for the accused. If the offence allows for prosecution by summary conviction or indictment, the Crown may choose to prosecute by indictment due to Aggravating Factors.

Furthermore, the Criminal Code instructs judges to reduce or increase a sentence in accordance with Mitigating and Aggravating Factors. Therefore, Aggravating Factors serve to increase a person’s sentence when they are not countered by Mitigating Factors.

What are some examples of Aggravating Factors for a Conviction or Charge of Assault?

The applicable Aggravating Factors depend on the type of Assault committed, whether it was Domestic Assault, Common Assault, Assault with a Weapon, etc. Some examples of Aggravating Factors include:

Domestic assault:

  • Whether the victim was a spouse or domestic partner. Cases of domestic assault are pursued a lot more vigorously than other assault cases
  • If children were present during the Domestic Assault
  • The assault occurred in the home
  • Whether there is a history of spousal abuse

Non-domestic assault:

  • Whether the accused previously assaulted the same victim
  • Criminal record for violence
  • Accused was on judicial interim release or probation when offence committed
  • Injuries caused to victim
  • Lack of remorse
  • Attack was planned or pre-meditated
  • Accused was intoxicated when the assault occurred
  • Role of the accused – if he or she was the leader, purposefully involved others in the commission of the offense
  • Gratuitous violence
  • The assault was part of gang-related activity

Circumstances relating to proceedings:

  • Accused was uncooperative with police and authorities
  • Accused evaded authorities, did not show up to court dates
  • Accused violated release orders
  • Absence of positive steps towards rehabilitation
  • Sometimes pleading not guilty may be taken as evidence of lack of remorse.

When are Aggravating Factors relevant?

Aggravating Factors, like Mitigating Factors, are relevant in nearly all stages of a person’s case since they contribute to the Crown’s decision on how to pursue the case. They are taken into account when the Crown is making the decision whether or not to seek prosecution, whether to seek alternative measures outside of prosecution, whether to push for a guilty plea, and whether to prosecute by indictment. Aggravating factors are also taken into account by the judge during sentencing, since the sentence has to reflect the balance of Aggravating and Mitigating Factors.

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