Canadian Criminal Sentencing/Procedure/Evidence

Evidence The admissibility of evidence is significantly different in a sentencing hearings than in trials. The interests at stake differ in a sentencing as opposed to a trial as the presumption of innocence is gone and there is no longer a concern for a wrongful conviction.R. v. Angelillo, 2006 SCC 55 (CanLII), [2006] 2 SCR 728 such as at para. 30 In sentencing, courts should be open to a broad range of information in order to achieve the objectives under the Code.R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 SCR 229 at p.396 ("...both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the ganger posed by the offender.") and at p. 398 ("sentencing judge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at his disposal the broadest possible range of information."( However, the evidence must still meet the standard of accuracy, credibility and reliability.McWilliams' Canadian Criminal Evidence, Fourth Edition at 34:10 R. v. Lévesque, 2000 SCC 47 (CanLII), [2000] 2 SCR 487 at para. 30 R. v. Campbell, 2003 CanLII 49352 (ON SC) at para. 31 Angelillo at para. 20 The prejudicial effect of the evidence should not outweigh the probative value.Angelillo at para. 32 R. v. Edwards, 2001 CanLII 24105 (ON CA) at para. 63 Campbell Exclusionary rules of evidence are not applied strictly in sentencing.Campbell at para. 29, 31, 32 R. v. Boyd, 1983 CanLII 240 (BC CA) Admissibility voir dires, such as for voluntariness, may be held but are not necessary.Campbell at para. 9 In 1996, Part XXIII was amended to create a statutory framework for sentencing hearings.Angelillo, such as at para. 21 The law of evidence at sentencing equally applies to dangerous and long term offenders.R. v. Johnson, 2003 SCC 46 (CanLII), [2003] 2 SCR 357 at para. 23 Character Evidence Character evidence is admissible and relevant to sentencing.Edwards at para.39-42 Angelillo at para. 28, 29 Character evidence may be excluded where fairness would outweigh the probative value.Angelillo at para. 32 Ewards at para. 63 2 Factual findings Section 723 codifies the common law rules on submission of evidence on sentencing. Submissions on facts 723. (1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed. Submission of evidence (2) The court shall hear any relevant evidence presented by the prosecutor or the offender. Production of evidence (3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence. Compel appearance (4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person who is a compellable witness to assist the court in determining the appropriate sentence. ... R.S., 1985, c. C-46, s. 723; 1995, c. 22, s. 6. ... Information accepted 724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender. CCC On a guilty plea, a judge may rely on facts that are agreed upon by the parties. The Crown will read the facts alleged as well as submit allegations of prior criminal convictions.e.g. R v Bartlett, 2005 NLCA 75 (CanLII) The Defence must have an opportunity to deny or consent to the allegations. R. v. Cataract (1994), 93 CCC 486 (SaskCA) In practice, at a minimum the crown should read-in enough facts to make out the essential elements of the offence. Preferably there should also be all admitted facts going to aggravating and mitigating factors. The judge may rely upon any information placed before him. This includes submissions by Crown and Defence counsel as well as admissible evidence.R v Bartlett 2005 NLCA 75 (CanLII) A guilty plea is only an admission of the essential elements of the offence.R. v. Gardiner, [1982] 368 S.C.R. 2 1982 CanLII 30 at 330 and 331 On sentencing, where facts are not in dispute, the judge may makes inferences from proven or undisputed evidence.R. v. Ducharme, 2012 MBCA 35 at para 5 2 Disputed of facts 724. ... 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. R.S., 1985, c. C-46, s. 724; 1995, c. 22, s. 6. CCC Where there is a dispute on facts, the court cannot rely upon the crown's version without supported facts.R. v. Choice Atlantic Seafoods Inc., 2001 NSSC 161 at para. 7 To settle the conflict the judge must hear evidence to settle the evidence or chose to accept the accused's version "so far as possible". s. 724(3)(e) R. v. Choice Atlantic Seafoods Inc., 2001 NSSC 161 at para. 7 citing R. v. Poorman 1991 CanLII 2759 (SK C.A.), (1991), 6 C.R. (4th) 364 (Sask. C.A.) If the difference amounts to a dispute between characterizations, the Defence must call evidence.R. v. Poulin, 1995 CanLII 2368 (BCCA) Aggravating facts must be proved beyond a reasonable doubt by the crown.R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762 at para. 43-44 R. v. Tomdio-Yiuiti, 2010 SKCA 81 R. v. Malinowski, 2007 SKCA 33 at para. 6 R. v. Lewis, 2012 NLCA 11, ("an aggravating factor that is disputed is, like an essential element of the offence, required to be proven beyond a reasonable doubt.") R. v. Gardiner, 1982 CanLII 30 (S.C.C.), [1982] 2 S.C.R. 368 at p. 414-5 R. v. Angelillo 2006 SCC 55 (CanLII), (2006), 214 C.C.C. (3d) 309 (S.C.C.), ("the extrinsic evidence is contested, the prosecution must prove it. Since the facts in question will doubtless be aggravating facts, they must be proved beyond a reasonable doubt (s. 724(3)(e)). The court can sentence the offender only for the offence of which he or she has been convicted, and the sentence must be proportionate to the gravity of that offence...") A "Gardiner Hearing" refers to the hearing of oral evidence that is conducted at sentencing where there is a dispute between the parties as to the facts on a guilty plea. see R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368 (the "issue should be resolved by ordinary legal principles governing criminal proceedings") This hearing is conducted according to s. 724(3). It will concern the “extrinsic evidence” that must be proven by the crown.R. v. Angelillo 2006 SCC 55 (CanLII), (2006), 214 C.C.C. (3d) 309 (S.C.C.), The Crown does not have to prove voluntariness of statements made by the accused.R v Lees, [1979] 2 SCR 749 2 Hearsay Hearsay is admissible in sentencing under s. 723. s. 723. ... Hearsay evidence (5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person (a) has personal knowledge of the matter; (b) is reasonably available; and (c) is a compellable witness. R.S., 1985, c. C-46, s. 723; 1995, c. 22, s. 6. CCC As with all evidence at sentencing, it must be credible and reliable.R v Francis (2005) CCC (3d) 147 at para. 24, 27 R v JPL 2006 ABPC 313 at para. 5 R. v. Janes Family Foods Ltd., 2008 ONCJ 13 (CanLII) Documentary evidence, such as reports, records, and assessments, may be admitted for the truth of its contents.R. v. McKay, 2004 MBQB 146 at para. 4-9 R. v. Ellard, 2005 BCSC 1087 (CanLII) at para. 22 The flexible standard may not apply where the Crown wishes to prove aggravating factors which requires proof beyond a reasonable doubt.R. v. Piche, 2006 ABCA 220 (CanLII) at para. 14-16 Levesque at para. 30 Angelillo at para. 20, 21 2 Evidence of Untried Offences Evidence of untried offences is generally a form of character evidence and may be admissible.R. v. McCauley, [2007] O.J. No. 1593 (S.C.) R. v. Fouquet, 2005 ABQB 673 (CanLII) Factors to consider whether untried conduct is admissible to establish character includes the following:R. v. Edwards, 2001 CanLII 24105 (ON CA) the nexus between the evidence and the offence for which the offender was convicted—the closer the connection the more likely the evidence will shed light on the circumstances of the charged offence; the similarity between the evidence and the offence for which the offender was convicted; the difficulty the offender may encounter in properly defending against the allegations in the proposed evidence; the danger that the sentence hearing will be unduly prolonged; the danger that the focus of the sentence hearing will appear to be diverted from the true purpose of imposing a fit sentence for the charged offence that is proportionate to the gravity of the offence and the degree of responsibility of the offender in accordance with s. 718.1; whether, as in Lees, the offender has adduced evidence of good character; and the cogency of the proposed evidence. 2 Post-Sentence evidence See: Canadian_Criminal_Procedure_and_Practice/Appeals