The Sentencing Hearing

• Author: Erin Winocur/Danielle Robitaille/Maya Borooah
• Pages: 61-110

61

The Sentencing

Hearing

3

I. Adjournment to Allow Oender to Take Steps to BeConsidered

on Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

II. Facts.................................................... 

III. Proving a Criminal Record .................................. 

IV. Other Oences: Section ................................. 

V. Pre-Sentence Reports ...................................... 

VI. Submissions of Counsel .................................... 

VII. Joint Positions ............................................ 

VIII. The Sentencing Range as Dened by the Crownand

Defence Positions ......................................... 

IX. Statement by the Oender: Section  ....................... 

X. Notice Provisions ......................................... 

XI. Remote Hearings ......................................... 

XII. Sentencing in Absentia ..................................... 

XIII. Sentencing Organizations: Section . ..................... 

XIV. Sentencing Parties......................................... 

XV. Sentencing Attempted Oences and Accessories After the Fact,

Counselling Oences Not Committed, and Conspiracy . . . . . . . . . . . 

XVI. Judicial Notice ............................................ 

XVII. Reasons ................................................. 

XVIII. Striking the Guilty Plea ..................................... 

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62Sentencing: Principles and Practice

The sentencing hearing is the formal process that leads to the imposition of sentence.

This chapter outlines issues and processes engaged in this phase of the case. The

rules of evidence are relaxed, and it is one of the very few times when oenders and

victims may speak directly to the court without being sworn and without the con-

straints of being required to answer questions posed by counsel. For the most part,

the sentencing hearing is relatively informal. However, a more relaxed process does

not equate to a less important one. For most oenders, victims, and the community

at large, the sentencing represents the bottom line. How our community responds to

crime as expressed through the sentencing hearing and judgment is critical to ensur-

ing all members of the community trust and respect the administration of justice. We

hope that this chapter will assist those engaged in the administration of criminal law

understand this crucial process.

I. Adjournment to Allow Offender to Take Steps

toBeConsidered on Sentencing

The Criminal Code requires that following a finding of guilt, the court “shall sen-

tence the accused or otherwise deal with the accused in the manner authorized by

law.”1 Furthermore, section 720 states, “A court shall, as soon as practicable after

an oender has been found guilty, conduct proceedings to determine the appro-

priate sentence to be imposed.” These provisions contemplate that the accused

will be sentenced in a timely manner and subject only to lawful postponements for

“reasonable periods of time.”2 Legitimate reasons for the adjournment of the sen-

tencing hearing include obtaining relevant evidence not immediately available,3

assessing the oender’s mental condition (ss672.11(d) and (e)), submitting a pre-

sentence report (s 721), receiving a victim impact statement (s722), or allowing for

reflection “upon a fit sentence.”4 A judge may also postpone the sentence hearing “in

order to allow the parties to prepare their submissions.”5

Lengthy adjournments for other purposes such as monitoring the accused’s behaviour

were traditionally held to be unlawful.6 In 1976 the Ontario Court of Appeal held that

[u]ntil legislation is enacted expressing dierent policies I think it should be regarded

as an illegal purpose, in the exercise of the discretion to postpone sentencing, to do so

in order to determine whether the accused makes restitution, or co-operates with the

1 Criminal Code, s 570(1).

2 R v WBT, 1995 CanLII 4059, [1995] SJ No 728 (QL) at para 9 (CA).

3 Regina v Nunner, 1976 CanLII 1349, [1976] OJ No 177 (QL) at para 9 (CA).

4 WBT, supra note 2 at para 9.

5 R v Fleisher, 2015 QCCA 642 at para 38.

6 R v Fuller, 1968 CanLII 792, [1969] 3 CCC 348 at para 21 (Man CA); R v JLL,1996 CanLII 5558,

[1996] NSJ No 1 (QL) at para 72 (CA).

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Chapter  The Sentencing Hearing 63

police to recover goods, or aids in the investigation of others. The courts should not

be a collection or investigative agency. … I would also regard any postponement of sen-

tencing beyond, say, a month or two, as prima facie evidence of the exercise of judicial

discretion for an illegal purpose and justifying mandamus.7

Unjustifiable delay in imposing sentence is unfair to the convicted person who should

not be kept in a state of suspense and uncertainty. To consider the subsequent con-

duct of the convicted person, “particularly over a long span of time would be to

consider matters not in existence at the time the oence was committed and this

should not be done.”8 More recently, where the state failed to obtain information

required for sentencing in a timely manner, the Crown’s actions were held to be

inconsistent with section 720, the remedy being mitigation of sentence.9

This rigid approach to the timing of sentencing has softened over time. This

approach is consistent with the more recent emphasis on rehabilitation in sentencing

and the additional provisions introduced into section 718 of the Criminal Code in 1996.10

These have been interpreted to evidence “an intention to expand the parameters of the

sentencing analysis.”11 It has been our experience12 that sentencing courts are receptive

to reasonable adjournments to allow oenders to take rehabilitative steps or engage in

other restorative actions such as making restitution or drafting letters of apology. Such

requests are often made on consent because it is typically in the public interest as well

as the oender’s that rehabilitative and restorative measures be taken.

A. Therapeutic Courts

Therapeutic courts are designed to address some of the underlying causes of crim-

inality. While there are several federally funded drug-treatment court programs in

Canada, there are also many locally developed and supported treatment courts. The

cases serviced by these courts involve oenders who have underlying causes of crim-

inality, such as addiction or mental health challenges, that benefit from treatment.

Generally, oenders in these programs plead guilty first and then participate in a

treatment program. Their progress is monitored by the court, and successful comple-

tion of the program results in a reduced sentence or some other outcome more favour-

able to the oender than the traditional sentence would be, such as a withdrawal,

stay, or peace bond.13 These treatment programs may last months, requiring lengthy

7 Nunner, supra note 3 at para 16.

8 R v Urton, 1974 CanLII 973, [1974] SJ No 339 (QL) at paras 5-6 (CA).

9 R v Knockwood, 2012 ONSC 2238 at paras 66-73.

10R v Gladue, [1999] 1 SCR 688, 1999 CanLII 679 at paras 35-42.

11Ibid at para 43.

12This has been exclusively in Ontario.

13Therapeutic courts vary with respect to procedure. Not all involve an upfront guilty plea, par-

ticularly where the contemplated outcome is a withdrawal, stay, or peace bond.

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