Aggravating and Mitigating Factors

• Author: Erin Winocur/Danielle Robitaille/Maya Borooah
• Pages: 111-153



Aggravating

and Mitigating

Factors

4

I. Section  List........................................... 

II. Statutorily Aggravating Factors............................... 

III. Pre-Trial Custody: Section () ............................. 

IV. Early Guilty Plea........................................... 

V. Criminal Record........................................... 

VI. Youthful Oender ......................................... 

VII. First-Time Oender........................................ 

VIII. Prevalence of the Oence ................................... 

IX. State Misconduct ......................................... 

X. Charter Breaches and Mandatory Minimums ................... 

XI. Bail Conditions ........................................... 

XII. Remorse................................................. 

XIII. Provocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

XIV. Health of the Accused...................................... 

XV. Impact of Incarceration on Dependants ....................... 

XVI. Diminished Capacity ....................................... 

XVII. Systemic Racism .......................................... 

XVIII. Cooperation with the Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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Sentencing: Principles and Practice

Aggravating and mitigating factors are those aspects of the case that push the court

toward a higher or lower sentence. This chapter considers those factors that have

been codified in the Criminal Code and also considers several factors identified in the

jurisprudence. This list of factors is not closed. The aggravating and mitigating fac-

tors are explained below in isolation. In reality, cases regularly engage more than one

of these factors. It is the role of counsel at the sentencing hearing to identify each fac-

tor present in the case and make a recommendation to the court regarding the appro-

priate weight to attach to each in reaching the final sentence. The greater the number

ofaggravating factors, the higher the sentence; conversely, the greater the number of

mitigating factors, the lower the sentence. However, it is not a mathematical equation.

Each case is dierent, and the weight given to each factor will vary in each case.

In Chapter 14, Specific Oences, we included sentencing charts for several of the

types of oences that we are regularly involved with prosecuting and defending. We

hope the cases contained there illustrate the extent to which the balancing of aggra-

vating and mitigating factors is very much an art and not a science. We encourage

you to consider the unique aspects of the oence and the individual qualities of the

oender in your submissions on, or determination of, the appropriate sentence. These

factors will determine the appropriate sentence within the range and may result in a

sentence outside of what would have previously been considered just. For example,

in R v Auckland,1 the oender received a sentence well below the typical range for

attempted murder because of numerous significantly mitigating factors, including that

the oender was a young, homeless Indigenous person experiencing a mental health

crisis at the time that he committed the oence. Whereas in R v Karas,2 the Court of

Appeal armed a sentence of 15-and-a-half years, at the top of the range for armed

robbery, because of numerous aggravating factors including that the oender was a

career criminal with a long history of armed robberies and other serious crimes of

violence who demonstrated little insight.3

I. Section  List

A. Hate Motivation

Section 718.2(a)(i) mandates that sentencing courts consider “evidence that the

oence was motivated by bias, prejudice or hate based on race, national or ethnic

origin, language, colour, religion, sex, age, mental or physical disability, sexual orien-

tation, or gender identity or expression, or on any other similar factor.” Oences that

are motivated by hatred, bias, or prejudice toward one or more of these groups are

1 2022 BCPC 56.

2 2021 ONCA 889.

3 See Chapter 1, General Principles, Section IV for further discussion on sentencing ranges and

starting points.

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Chapter  Aggravating and Mitigating Factors 

considered to be more heinous because they attack “the very fabric of our society.”4

Oences of this type require sentences that reflect the need for general deterrence

and denunciation.5 The extent to which an offence is found to be motivated by

revenge against a particular group will be considered a further aggravating feature.6

An attack on a place of worship is also considered an additional aggravating feature

because a place of worship is

the visible symbol of a religion, traditionally a place of devotion, sanctuary, peace and

safety for its adherents. It is immaterial whether the building was a temple, a mosque,

a church, a cathedral or a synagogue. An attempt to destroy a place of worship intimi-

dates and engenders fear among adherents, limiting the way they exercise their religious

freedom. Such actions undermine freedom of religion, a value Canadians cherish, and

erode a fundamental freedom guaranteed by the Charter of Rights and Freedoms (s. 2(a)).7

While sentencing is an individualized process and persons charged together may

receive dierent sentences to reflect their diering roles in the crime or antecedents,8

where the court finds a group of oenders to be engaged in a collective hate crime, it

is less likely to distinguish between their dierent roles in the crime. In the words of

Lambert JA of the British Columbia Court of Appeal,

[o]n the question of participation it is important to understand that in a gang crime com-

mitted together by a like-minded group of racial bigots together carrying into eect their

deplorable aims there is no room for nice distinctions about degrees of participation.9

The meaning of the phase “any other similar factor” was considered by the

Ontario Court of Appeal in R v Mills.10 The sentencing judge interpreted the phrase

as “encompassing membership in a rival street gang.” The appellate court found that

to be an error. It held that section 718.2(a)( i) “assigns greater culpability to the com-

mission of crimes motivated not by hatred of any identifiable group, but by hatred of

persons or groups based on personal characteristics that are, to a degree, immutable,

constitutive, and unchosen.”11

4 R v Lelas,1990 CanLII 6836, [1990] OJ No 1587 (QL) at para 27 (CA), citing Regina v Ingram

and Grimsdale,1977 CanLII 2018, 35 CCC (2d) 376 at 379 (Ont CA); R v Soles, 86 OTC 4,

[1998] OJ No5061 (QL) at paras 20, 21 (Gen Div).

5 R v Sandouga, 2002 ABCA 196 at para 29.

6 Ibid at paras 9-24.

7 Ibid at para 19.

8 Further reference may be made to the discussion of parity and individualization in Chapter1,

General Principles, Section IV and parties in Chapter 3, The Sentencing Hearing, Section XIV.

9 R v Miloszewski (sub nom R v Nikkel) (appeals by Nikkel and Synderek), 2001 BCCA 745 at para 27.

102019 ONCA 940 at para 258.

11Ibid.

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