Mitigating Factors for Sentencing

Throughout your criminal proceedings, the Crown and defence will often discuss your charges and some background information about you may be relevant to these discussions. The circumstances that surround your criminal behaviour can be relevant to the Crown when they are deciding what resolution they think is appropriate for you. A judge will also eventually have some of this information before him when he is considering sentence.

It is important you and counsel discuss factors that you think are important to your personal circumstances so together you can decide whether this information should be brought to the Crown’s and/or court’s attention.

Mitigating factors suggest a sentence should be lighter because of a circumstance that is directly relevant to either the conduct charged or the accused.

When are mitigating factors relevant?

Mitigating factors can be important at many different stages of your proceedings.

Initially, knowledge of certain circumstances may affect the Crown’s position on plea, sentence upon resolution and whether or not he or she will offer alternative sanctions to you. The Crown is the “other party” in the criminal justice system that your lawyer will be negotiating with and engaging in resolution discussions with, if you instruct counsel to do so. It may be important for the Crown to know about mitigating circumstances as they could impact how your case is approached.

Mitigating factors are also relevant upon resolution 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 that are relevant to the offence or the offender. Usually, aggravating or mitigating factors are relevant to one of two central themes of sentencing:

  1. The gravity of the offence (defined by the offender’s culpability and the harm caused)
  2. The ways in which character and conduct relate to sentencing objectives.

Anything that might impact how the court views the gravity of the offence or the character and conduct of the offender may be relevant and you should canvas such factors with counsel.

What are examples of mitigating factors?

The Criminal Code does not include any provisions that talk about mitigating factors. However, through common law, judges have recognized a number of mitigating factors that can be relevant when determining a fit and just sentence, including:

First Time Offender – being a first time offender suggests that a conviction itself is a punishment. It is possible the accused person will be deterred by the process itself of being arrested, charged, found guilty and sanctioned.

Prior Good Character – achievements and opinions from coworkers, family or friends may help show the offence is out of character.

Guilty Plea and Remorse – mitigating impact depends on the timing: the earlier the plea is, the more likely that it will be found to indicate remorse

Evidence of Impairment – emotional, physical and psychological factors that impair judgment may act as mitigating. A core principle of sentencing is that the sentence should match the degree of responsibility of the offender.

Employment Record – strong record of prior employment is always mitigating as it demonstrates pro-social responsibility. However, the extent of its benefit will depend on the nature of the offence.

Collateral Consequences – physical, emotional, social or financial consequences as a result of the criminal charge may be mitigating.

Rehabilitation Efforts after the Offence – if your offence is related to a personal problem (i.e. alcohol, drugs or anger issues) and you take steps to improve that situation, this is given mitigating credit.

Unrelated Acts of Charity of Bravery – may be given mitigating credit if of significant importance.

Acts of Reparation or Compensation – acts done prior to sentencing may be mitigating.

Provocation and Duress – although not amounting to a full defence at trial, the presence of some provocation or duress may be relevant at sentencing to reduce the degree of moral blameworthiness.

Delay in Prosecution – delay that is serious but not amounting to a Charter breach may be relevant at sentencing because the delay aggravates the ordinary impact of the sentence.

Gap in Criminal Record – a large gap in a criminal record indicates an ability to conform with legal norms.

Immaturity – may reduce culpability of the offender.

Age – youth or seniors may receive mitigating credit.

 

Aggravating Factors for Sentencing

Throughout your criminal proceedings, the Crown and defence will often discuss your charges and some background information about you may be relevant to these discussions. The circumstances that surround your criminal behaviour can be relevant to the Crown when they are deciding what resolution they think is appropriate for you. A judge will also eventually have some of this information before him when he is considering sentence.

It is important you and counsel discuss factors that you think are important to your personal circumstances so together you can decide whether this information should be brought to the Crown’s and/or court’s attention.

Aggravating factors suggest a sentence should be higher because of a circumstance that is directly relevant to either the conduct charged or the accused.

When are aggravating factors relevant?

Aggravating factors can be important at many different stages of your proceedings.

Initially, knowledge of certain circumstances may affect the Crown’s position on plea, sentence upon resolution and whether or not they will offer alternative sanctions to you. The Crown is the “other party” in the criminal justice system that your lawyer will be negotiating with and engaging in resolution discussions with, if you instruct counsel to do so. It may be important for the Crown to know about mitigating circumstances as they could impact how your case is approached.

Aggravating factors are also relevant upon resolution 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 that are relevant to the offence or the offender. Usually, aggravating or mitigating factors are relevant to one of two central themes of sentencing:

  1. The gravity of the offence (defined by the offender’s culpability and the harm caused)
  2. The ways in which character and conduct relate to sentencing objectives.

Anything that might impact how the court views the gravity of the offence or the character and conduct of the offender may be relevant and you should canvas such factors with counsel.

Will evidence of my aggravating conduct become part of the court record?

It is possible that aggravating conduct will come before the court. An aggravating feature might be part of the actual offence itself. For example, you may be charged with shoplifting while in a position of trust (i.e. shoplifting from an employer).

Aggravating factors may also become known if they are part of the disclosure package from the Crown, or if you or your counsel disclose them to the Crown or the court as part of a strategy to try and pre-empt negative consequences. Any decision to inform the Crown or the court about aggravating factors in negotiations or proceedings should be carefully discussed.

Aggravating factors may also be revealed during a criminal trial through the testimony or statements or witnesses.

At sentencing, if the Crown wants to rely on an aggravating fact it must have been proven at trial. If the aggravating fact the Crown wants to rely on was not part of the matrix of facts that resulted in your criminal conviction, then the Crown will be required to prove that fact at a sentencing hearing.

What are aggravating factors?

Unlike mitigating factors, there are a number of aggravating factors laid out in the Criminal Code that a judge is required to consider when determining a just and fit sentence. Some of the aggravating factors under Section 718.2 include:

  • Evidence 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;
  • Evidence the offender abused a person under the age of 18;
  • Evidence the offender abused a position of trust or authority;
  • Evidence the offence had a significant impact on the victim;
  • Evidence the offence was committed for the benefit or in association with a criminal organization;
  • Evidence the offence was a terrorism offence.

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

  • Prior criminal record:
  • Violence or use of a weapon;
  • Cruelty or brutality;
  • Significant injuries to the victim;
  • Offence committed while on release;
  • Multiple victims or incidents;
  • Gang activity;
  • Impeding access to the justice system;
  • Economic loss;
  • Planning and organization;
  • Victim vulnerability;
  • Deliberate risk tasking

If any of these circumstances are relevant to your criminal offending, you may face an increased penalty. A lawyer can discuss strategy with you and help you figure out the best way to proceed in light of your circumstances.

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