The document summarizes key information about evidence admissibility and sentencing considerations in criminal proceedings. It discusses: - What evidence from the trial and additional information can be presented at sentencing. - Standards for admitting hearsay, similar fact, medical reports and victim impact statements. - Factors considered in pre-sentence reports and sexual behaviour assessments. - The offender's right to speak and how mitigating/aggravating factors, concurrent/consecutive sentences, and conditional/incarceration sentences determine the proper sentencing range.

1. SENTENCING
HEARING
Aaron Rainey

2. ADMISSIBILITY OF EVIDENCE
•All of the facts accepted at trial and all findings made by
the trial judge will be will be applied at a sentencing
hearing. If the offender has pleaded guilty, the facts are
simply read to him, and he admits those facts. The offender
may decide whether or not to admit to specific facts.
•Crown or Defence counsel can bring in additional
information as it pertains to sentencing. This includes
evidence given from witnesses, medical reports,
sentencing reports, etc. Submissions can are heard at the
sentencing hearing by both the Crown Attorney and the
counsel for the offender; submissions are arguments put
forth by either side disputing issues in question.

3. ADMISSIBILITY OF
EVIDENCE
•Hearsay evidence is used and allowed as long as it
is credible and trustworthy (Slide 4 will explain when
certain evidence is not acceptable).
•Usually, this is background information and counsel
will give these facts without calling evidence to back
them up
• Ex: When submitting any mitigating factors to judge
the defence might say that the accused has been
going to rehab, or that accused has a job, etc
(more info on Slide 6).

4. SIMILAR FACT
EVIDENCE
•Similar Fact Evidence comes from a situation in the
offenders past where he committed misconduct, and
similar facts were present then as they are in offences at
bar. The Crown uses this evidence to discredit the
accused and to infer that if the offender did it in the past,
he’s likely to do it again.
•R v. Handy (2002) (SCC) says that as a general rule
similar fact evidence is not to be admitted. Evidence
argued to be an exception to this rule must have high
probative value outweighing on a balance of probabilities
the possibility of prejudice.

5. Propensity Reasoning
•Within the principle of excluding Similar Fact
Evidence is a line of reasoning called propensity
reasoning.
•Essentially it is where counsel reasons using Similar
Fact Evidence to reveal similar past misconduct
proving the offenders propensity (natural tendency
or inclination) to conduct himself in a certain way,
therefore, offering proof that accused is guilty of the
present charges before him.

6. BURDEN OF PROOF
•If there are any aggravating or mitigating factors
to be disputed the onus of proof is on the party
who is relying on them.
•Mitigating Factors: Proven on Balance of
Probabilities
•Aggravating Factors: Proven Beyond a
Reasonable Doubt

7. PROVING A CRIMINAL
RECORD
•Criminal record can be admitted as evidence at
a sentencing hearing
•If it is not admitted, then the Crown must prove it
through other means to rely on it at sentencing.

8. PRE-SENTENCE REPORT
(PSR)
What is it?
•A report used to assist the judge in passing sentence or to help the
judge decide whether the accused should be discharged.
•PSR includes (s. 721(3)(a)-(d)):
A.Age, maturity, character, behaviour, attitude and willingness to make
amends
B.Subject to subsection 119(2) of the YCJA, the history of previous
dispositions under the YOA, history of previous sentences under YCJA,
and previous findings of guilt under the CCC or any other Act.
C.History of any alternative measures used to deal with offender and the
offender’s response to those measures
D.Any other matter required, by any regulation made under subsection
(2), to be included in the report.

9. PRE-SENTENCE
REPORT
Other things to be included: Current substance abuse,
past substance abuse, community recommendations,
current intimate relationship, substance abuse
treatment plans, recidivism risk, relationship problems,
family support, etc.

10. PRE-SENTENCE
REPORT
When can it be used?
•S.721 of the Criminal Code states that a probation
officer must prepare a PSR when the court requests
one.
•A court will request a PSR for the purpose of
assisting the court in imposing a sentence OR
determining whether the accused should be
discharged.
•Court can only request a PSR if the accused has
been found guilty or if accused enters plea of guilt.

11. VICTIM IMPACT
STATEMENT (VIS)
What is it?
•A written statement prepared and given by the victim
or a family member where the victim is incapable of
doing so
•A written statement can also be given by a person who
is a direct family member of the victim (s. 722(b)(1))
•There is no limit to how long the VIS can be
•VIS gives the victim a chance to tell the court how the
offences affected him or her
•Can be read in by the Crown, the victim (in person or
via CCTV) or a family member

12. VICTIM IMPACT
STATEMENT
When can it be used?
•At the sentencing hearing
•The Judge shall take VIS into consideration
when imposing a sentence

13. MEDICAL REPORTS
What are they?
•Expert opinions that address concerns surrounding the presence or
absence of a mental disorder which are seen to affect behaviour and
decision making.
•The offender is allowed to use medical reports as evidence
•Crown is not usually allowed to adduce psychiatric material related to
the offender.
•“Protected Statements” are any statements made by the accused in
an assessment or treatment as directed by a disposition. They cannot
be used without the offenders consent except for specified purposes
(next slide).

14. PROTECTED
STATEMENTS
Protected Statements are admissible in evidence when (s. 672.21 (3)) …
A.Determining if accused is Fit to Stand Trial
B.Making a disposition or placement decision
C.Determining whether to review a finding that the accused is a high-risk offender
or whether to revoke that finding
D.Determining on a balance of probabilities whether a female person who has
been charged with an offence arising out of the death of her new born child was
disturbed at the time of the offence.
E.Determining if accused is NCR. Accused must raise this issue.
F.Challenging credibility of accused where the testimony of the accused is
inconsistent in a material particular with a protected statement that the offender
made.
G.Establishing perjury of an accused who is charged with perjury in respect of a
statement made in any proceeding

15. SEXUAL BEHAVIOUR
ASSESSMENT
•For sexual offenders, this assessment is used at the
sentencing hearing to determine the proper range of
sentencing
•Used to determine the offenders risk of reoffending
•There are nine tests within this assessment
•R v D (DA) (2014) ONSC recognized the offenders
low risk of reoffending, and it is seen to have been a
mitigating factor when the judge imposed the
sentence

16. OFFENDERS RIGHT TO
SPEAK
•s.726 states that an offender has the right
to speak to the court before his sentence is
imposed.

17. RANGE OF
SENTENCING
•This is where everything that we have learned thus far
comes together.
•We’re going to look at four things that play into
establishing a proper range of sentencing:
1.The different types of Mitigating and Aggravating
Factors
2.Concurrent vs. Consecutive Sentencing and the Totality
Principle
3.Conditional vs. Incarceration Sentences
4.Kienapple Principle

18. MITIGATING FACTORS
1.Short time span
2.Only one offence that the offender is being currently
sentenced for
3.First time offender
4.Prior good character
5.Current or recent employment
6.Cooperation with authorities
7.If the offender has made attempts to help himself
since the time of the offence (i.e. counselling)
8.Remorse/Acceptance of Responsibility
9.Disadvantaged Background

19. AGGRAVATING
FACTORS
1.Long time span
2.Multiple offences
3.Repeat offender
4.Breach of Trust
5.Vulnerability of Victim
6.Multiple Victims
7.Use of a Weapon
8.Cruelty or Brutality
9.Association with Criminal Organization
10.Offence was a part of group or gang activity
11.Victim was a spouse or partner

20. CONCURRENT VS. CONSECUTIVE
SENTENCING AND THE TOTALITY
PRINCIPLE
•Generally speaking, sentences that are a part of the
same event or transaction ought to be served
concurrently.
•Offences that are discrete in time and nature should
be served consecutively
•The Totality Principle says that consecutive
sentences cannot amount to produce excessive
punishment.
•R v Jewell (1995) ONCA puts all of this together for
us.

21. CONDITIONAL VS.
INCARCERATION
•When can a conditional sentence be imposed?
•R v Proloux (2000) SCC lays out the criteria that must be
met in order for a conditional sentence to be allowed:
1. The offender must be convicted of an offence that is not
punishable by a minimum term of incarceration.
2. The court must impose a total sentence that is less than
two years in length.
3. The safety of the community would not endangered by the
offender serving the sentence in the community; and
4. A conditional sentence would be consistent with the
fundamental purpose and principles of sentencing set out in
ss.718 to 718.2 of the Criminal Code.

22. KIENAPPLE
PRINCIPLE
•This principle applies in situations where there is a factual
and legal nexus between charges.
•Sexual Assault and Sexual Interference are two offences
where a legal nexus is found.
•Sexual interference is a particularization of sexual assault
in that sexual interference distinguishes itself from sexual
assault by including the involvement of an underage
person. Sexual assault is essentially the same offence as
sexual interference in that sexual assault is the touching
of another person’s body regardless of their age.
•R v M (SJ) (2009) ONCA is a case where the Kienapple
principle is used.