Sentencing Issues

• Author: Eric V. Gottardi/Jennifer A. MacLellan/Michael Lacy/Robin Flumerfelt
• Pages: 91-113

91

5

Sentencing

Issues

I. Introduction ............................................. 92

II. Sentencing of Adult Offenders .............................. 92

A. Pre-Sentence Reports, Probation Officers, and

OpinionEvidence ................................... 92

B. Other Types of Opinion Evidence: Psychiatric/

PsychologicalAssessments ........................... 94

C. When Expert Evidence Is Not Admissible ................ 98

D. Expert Evidence in the Dangerous Offender Context ....... 99

III. Youth Criminal Justice Act Dispositions andExpertEvidence ...... 106

IV. Sentencing Issues: Gladue Reports ........................... 107

V. Sentencing Issues: Race and Culture ......................... 108

© [2022] Emond Montgomery Publications. All Rights Reserved.

92 Part I Principles and Procedure

I. Introduction

Opinion evidence can play an important and sometimes decisive role in the sentenc-

ing context. As Gonthier J stated in R v Lévesque:1

Another specific characteristic of the sentencing process that should be emphasized is

the importance of opinion evidence. At the sentencing stage, judges must often consider

reports prepared by probation officers, correctional service officers, psychologists or

psychiatrists reporting their opinions concerning the personality of the accused, and his

or her chances of rehabilitation and risk of reoffending.2

The admissibility of opinion evidence in this context is guided by the same sub-

stantive principles that govern the trial context as informed by separate statutory

provisions in the Criminal Code that govern sentencing proceedings and other statu-

tory provisions that govern youth sentencing under the Youth Criminal Justice Act

(YCJA).3

II. Sentencing of Adult Offenders

Hearsay evidence is generally admissible on a sentencing hearing (s 723(5) of the

Code), but a court may, where “it is in the interests of justice,” compel a person to

testify rather than rely on hearsay evidence. A court may also accept as proved any

information disclosed at the trial or at the sentencing proceeding and any facts agreed

upon by the prosecutor and the accused (s 724(1)). However, any disputed aggravating

factor must be proven by the Crown beyond a reasonable doubt. A sentencing court is

also required to consider “any relevant information” placed before it (s 726.1). This

statutory context, however, does not obviate the need for expert opinion evidence to

be properly admissible (or consented to) before it is considered and acted upon by a

sentencing judge. Nor does it eliminate, where appropriate, testing of expert evidence

before a sentencing judge.

A. Pre-Sentence Reports, Probation Off icers, and

OpinionEvidence

Prior to sentencing an offender, it is not uncommon for a judge to request the prep-

aration of a pre-sentence report to assist in informing what will be a fit and appro-

priate sentence, particularly in those circumstances where there is no mandatory

minimumsentence. The content of such reports and the use they will be put to at a

sentencing hearing can engage expert opinion evidence issues.

1 2000 SCC 47.

2 Ibid at para 31.

3 SC 2002, c 1.

© [2022] Emond Montgomery Publications. All Rights Reserved.