Resolving Criminal Matters Prior to Trial (1:VI) - Revision history

Nate Russell at 19:38, 27 November 2025

2025-11-27T19:38:36Z

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	The Government of Canada announced funding for IRAC reports to Legal Aid Services across Canada for self-identified racialized individuals in 2021. The reports are generally limited to Legal Aid clients facing jail sentences that are two or more years or youth offenders facing custodial sentences. Cases that do not fit that description are decided by Legal Aid BC on a case by case basis after rules surrounding the reports were relaxed in 2024.		The Government of Canada announced funding for IRAC reports to Legal Aid Services across Canada for self-identified racialized individuals in 2021. The reports are generally limited to Legal Aid clients facing jail sentences that are two or more years or youth offenders facing custodial sentences. Cases that do not fit that description are decided by Legal Aid BC on a case by case basis after rules surrounding the reports were relaxed in 2024.

	Legal Aid BC has a list of approved assessors. If an accused or their counsel is wishes to receive an assessment they can contact [https://legalaid.bc.ca/lawyers/news/impact-race-and-culture-assessments-0~~#:~:text=LABC%2520is%2520currently%2520offering%2520support,@legalaid.bc.ca.~~ Legal Aid BC] as only Legal Aid Lawyers are able to request a report. For further information you can contact Legal Aid BC at irca@legalaid.bc.ca.		Legal Aid BC has a list of approved assessors. If an accused or their counsel is wishes to receive an assessment they can contact [https://legalaid.bc.ca/lawyers/news/impact-race-and-culture-assessments-0 Legal Aid BC] as only Legal Aid Lawyers are able to request a report. For further information you can contact Legal Aid BC at irca@legalaid.bc.ca.

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LSLAP at 18:53, 13 October 2025

2025-10-13T18:53:43Z

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	{{REVIEWED LSLAP \| date= 12 August 2025}}		{{REVIEWED LSLAP \| date= 1 August 2025}}
	{{LSLAP Manual TOC\|expanded = criminal}}		{{LSLAP Manual TOC\|expanded = criminal}}

LSLAP: /* E. Sentencing Hearing */

2025-09-22T21:50:26Z

E. Sentencing Hearing

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	! style="font-style: italic;text-align: left;" \| Gladue Reports		! style="font-style: italic;text-align: left;" \| Gladue Reports
	\|-		\|-
	\| For cases where the offender is Indigenous, reference must be made to section 718.2(e) of the '''Criminal Code''' and the principles laid out in [https://canlii.ca/t/1fqp2 ''R. v. Gladue''], [1999] 1 SCR 688. Section 718.2(e) of the ''Criminal Code'', which states that judges must pay attention to the circumstances of Aboriginal offenders, was implemented in 1996 in an attempt to address the over representation of Indigenous Peoples within Canadian prisons. ''Gladue'' followed shortly thereafter in 1999, and established that judges must consider Gladue principles when making decisions in cases with Indigenous offenders. This means that a judge must consider the personal and unique circumstances of the accused as well as the particular hardships they have faced, resilience they have demonstrated, and ways to support them that would address their challenges. The judge should consider the accused’s life experience and what has happened to them, their friends, family and community. The Supreme Court in ''Gladue'' specifically outlined that sentencing judges must pay attention to:		\| For cases where the offender is Indigenous, reference must be made to section 718.2(e) of the ''Criminal Code'' and the principles laid out in [https://canlii.ca/t/1fqp2 ''R. v. Gladue''], [1999] 1 SCR 688. Section 718.2(e) of the ''Criminal Code'', which states that judges must pay attention to the circumstances of Aboriginal offenders, was implemented in 1996 in an attempt to address the over representation of Indigenous Peoples within Canadian prisons. ''Gladue'' followed shortly thereafter in 1999, and established that judges must consider Gladue principles when making decisions in cases with Indigenous offenders. This means that a judge must consider the personal and unique circumstances of the accused as well as the particular hardships they have faced, resilience they have demonstrated, and ways to support them that would address their challenges. The judge should consider the accused’s life experience and what has happened to them, their friends, family and community. The Supreme Court in ''Gladue'' specifically outlined that sentencing judges must pay attention to:

	#The unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and		#The unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and

LSLAP: /* E. Sentencing Hearing */

2025-09-22T21:48:37Z

E. Sentencing Hearing

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	In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). The default is consecutive. However, if the offences were sufficiently distinct from each other Crown may seek concurrent sentences. The legal test is whether or not the two criminal acts were part of a linked series of acts within a single endeavour ([https://canlii.ca/t/22mm3 ''R. v. Li'' 2009 BCCA 85] at para 43).		In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). The default is consecutive. However, if the offences were sufficiently distinct from each other Crown may seek concurrent sentences. The legal test is whether or not the two criminal acts were part of a linked series of acts within a single endeavour (''[https://canlii.ca/t/22mm3 R. v. Li]'', 2009 BCCA 85 at para 43).


	In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court’s recent position on consecutive vs. concurrent parole ineligibility periods, which speaks to the Charter issues in sentencing, see ''[https://canlii.ca/t/jpf5d R. v. Bissonnette]'', 2022 SCC 23].		In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court’s recent position on consecutive vs. concurrent parole ineligibility periods, which speaks to the ''Charter'' issues in sentencing, see ''[https://canlii.ca/t/jpf5d R. v. Bissonnette]'', 2022 SCC 23].

LSLAP: /* E. Sentencing Hearing */

2025-09-22T21:47:14Z

E. Sentencing Hearing

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	After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Law students should alert their client to the fact that they will be invited to speak after the law student finishes their submissions, and that there is no obligation to say anything. However, it is usually beneficial for an accused to express remorse. Following the accused’s opportunity to personally speak to the court, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see [[~~How_to_Prepare_For_and_Conduct_a_Non~~-~~custodial_Sentencing_Hearing_as_a_Law_Student_~~(1:~~App_D~~)\|Appendix D]].		After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Law students should alert their client to the fact that they will be invited to speak after the law student finishes their submissions, and that there is no obligation to say anything. However, it is usually beneficial for an accused to express remorse. Following the accused’s opportunity to personally speak to the court, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see '''[[How to Prepare For and Conduct a Non-custodial Sentencing Hearing as a Law Student (1:App E)\|Appendix E: How to Prepare for and Conduct a Sentencing Hearing]]'''.

LSLAP: /* E. Sentencing Hearing */

2025-09-22T21:45:51Z

E. Sentencing Hearing

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	Prior to the sentencing hearing the accused and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document (see '''[[Criminal Charges (1:IV)\|Section IV.F.3']]''). The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Where the parties cannot agree, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see ''Criminal Code'', s 724(3) for how the court determines disputed facts).		Prior to the sentencing hearing the accused and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document (see '''[[Criminal Charges (1:IV)\|Section IV.F.3]]'''). The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Where the parties cannot agree, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see ''Criminal Code'', s 724(3) for how the court determines disputed facts).

LSLAP: /* E. Sentencing Hearing */

2025-09-22T21:45:35Z

E. Sentencing Hearing

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	Prior to the sentencing hearing the accused and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document (see '''Section IV.F.3'''). The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Where the parties cannot agree, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see ''Criminal Code'', s 724(3) for how the court determines disputed facts).		Prior to the sentencing hearing the accused and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document (see '''[[Criminal Charges (1:IV)\|Section IV.F.3']]''). The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Where the parties cannot agree, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see ''Criminal Code'', s 724(3) for how the court determines disputed facts).

LSLAP: /* D. Pleading Guilty */

2025-09-22T21:44:46Z

D. Pleading Guilty

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	The sentencing hearing can either proceed immediately after a guilty plea is entered or be adjourned to permit the parties to prepare for the sentencing hearing. For self-represented litigants, duty counsel can assist with a sentencing negotiation with the Crown. Before pleading guility, it is generally a good strategy to talk to the Crown about the possibility of a joint submission where both sides agree on a sentence. Most Crown Counsel will agree to a reasonable joint sentencing position and will often stay some charges on a multi-count Information in exchange for a guilty plea on others. It is important to know that the judge is not bound by a joint submission ([https://canlii.ca/t/gv7bk ''R. v. Anthony‑Cook''], 2016 SCC 43). See [[~~How_to_Prepare_For_and_Conduct_a_Non~~-~~custodial_Sentencing_Hearing_as_a_Law_Student_~~(1:~~App_D~~)\|Appendix D]] for the process of entering a guilty plea.		The sentencing hearing can either proceed immediately after a guilty plea is entered or be adjourned to permit the parties to prepare for the sentencing hearing. For self-represented litigants, duty counsel can assist with a sentencing negotiation with the Crown. Before pleading guility, it is generally a good strategy to talk to the Crown about the possibility of a joint submission where both sides agree on a sentence. Most Crown Counsel will agree to a reasonable joint sentencing position and will often stay some charges on a multi-count Information in exchange for a guilty plea on others. It is important to know that the judge is not bound by a joint submission ([https://canlii.ca/t/gv7bk ''R. v. Anthony‑Cook''], 2016 SCC 43). See '''[[How to Prepare For and Conduct a Non-custodial Sentencing Hearing as a Law Student (1:App E)\|Appendix E: How to Prepare for and Conduct a Sentencing Hearing]]''' for the process of entering a guilty plea.

LSLAP: /* B. Diversion / Alternative Measures */

2025-09-22T21:42:23Z

B. Diversion / Alternative Measures

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	See [[Diversion_Application_and_Sample_Letter_(1:App_C)\|Appendix C]] for an example of an application for diversion.		See [[Diversion_Application_and_Sample_Letter_(1:App_C)\|Appendix C]] and [[Sample Diversion Letter (1:App D)\|D]] for an example of an application for diversion.

	== C. Peace Bond (s 810) ==		== C. Peace Bond (s 810) ==

LSLAP: /* E. Sentencing Hearing */

2025-09-21T19:17:01Z

E. Sentencing Hearing

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	In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court’s recent position on consecutive vs. concurrent parole ineligibility periods, which speaks to the Charter issues in sentencing, see [https://canlii.ca/t/jpf5d ''R. v. Bissonnette'', 2022 SCC 23].		In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court’s recent position on consecutive vs. concurrent parole ineligibility periods, which speaks to the Charter issues in sentencing, see ''[https://canlii.ca/t/jpf5d R. v. Bissonnette]'', 2022 SCC 23].