C. Aggravating and Mitigating Factors in Sentencing

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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Courts consider a wide range of aggravating and mitigating factors in connection with the particular crime and the offender. They often consider the offender’s degree of participation in a crime. This consideration is important because criminal offences are often defined to catch a broad range of conduct and people can be convicted of a crime as parties even though they did not actually commit the crime. Courts also consider planning and deliberation, breach of trust, use of violence and weapons, and harm to victims as aggravating factors. Section 718.2 directs the court to consider aggravating factors such as whether the crime "was motivated by bias, prejudice or hate" on group characteristics, involved spousal or child abuse, or involved an abuse of a position of trust or authority.

Prior convictions are usually considered an aggravating factor, while the accused’s good character, youth, old age, ill health, remorse, and early guilty plea will generally be considered mitigating factors. Even though it also operates as a partial defence that reduces murder to manslaughter, provocation can be considered a mitigating factor in sentencing for manslaughter51and presumably other crimes. The use of alcohol and drugs can either be a mitigating factor or an aggravating factor, depending on the circumstances and the purposes of punishment that are stressed. The same can be said of the accused’s social status, which may be related to either prospects for rehabilitation and future danger or to the goals of general deterrence and denunciation. Courts also consider time served in custody, and the combined effect of consecutive sentences.

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Charter breaches and other abuses of state power may be mitigating factors at sentencing subject to other sentencing rules and...

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