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 rely on a relevant fact has the burden of proving it.  The standard of proof to satisfy this burden depends on whether the fact is a disputed aggravating fact or not.

If the Crown disputes a mitigating factor, the accused has to prove the factor on a balance of probabilities.

See s. 724(3)(d) of the Criminal Code;

R. v. Holt (1983), 1983 CanLII 3521 (ON CA), 4 C.C.C. (3d) 32 at 51-52 (Ont. C.A.), leave to appeal ref’d [1983] S.C.C.A. No. 474: The accused is not entitled to rely on disputed mitigating factors in the absence of such proof.

But if the disputed fact is aggravating, the Crown must prove that fact beyond a reasonable doubt.

See s. 724(3)(d) of the Criminal Code;

see also R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.

What facts are considered aggravating/mitigating?

An aggravating factor is one that will tend to increase the severity of the sentence, whereas a mitigating factor will weigh in favour of a more lenient sentence.

Putting the fact into dispute

The Crown must prove aggravating facts on sentencing beyond a reasonable doubt but only where those facts are disputed. This is supported by the wording of 724(3), itself: “Where there is a dispute with respect to any fact…”

In R. v. Walkley, 2009 BCCA 87 (CanLII), the BC Court of Appeal held that not admitting a fact is insufficient to trigger s. 724(3) when the accused has declined, when given the opportunity, to dispute it.

Thus, there must be some positive indication that the fact is in dispute in order to trigger s. 724(3).  Putting the fact into dispute can occur in various ways.   The most sure way is if the accused explicitly states that it rejects the Crown submission of fact which goes to the gravity of the offence.  However, the following have also been held to trigger section 724(3) :

  • If the accused presents a different version of the incident, the sentencing judge is bound to ignore the Crown submission, unless it leads evidence on the disputed fact.

R. v. Leschyshyn, 2007 MBCA 41 (CanLII), para. 7, Chartier J.A.

  • The Crown indicates that the accused’s evidence is contradicted by other facts.

R. v. Tran, 2007 BCCA 405 (CanLII).

  • The accused states that there is no evidence supporting a particular aggravating fact relied on by Crown.

 R. v. B.S.B., 2010 BCCA 40 (CanLII).

*NB: This is a non-exhaustive list.

Written by Stuart O’Connell, O’Connell Law Group (All rights reserved to author).


Disputed facts

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross-examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [Emphasis mine].

[FN] However, procedural protections are not immutable – they can vary according to the context in which they are invoked.