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

Nate Russell: /* Hearing procedure */

2026-09-22T23:49:09Z

Hearing procedure

← Older revision		Revision as of 23:49, 22 September 2026
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	Crown presents their submissions in the sentencing hearing first. Assuming that there is no substantial disagreement on the facts of the offence, Crown Counsel will begin by reading the facts (either from the Report to Crown Counsel or from the agreed statement of facts). Next, the Crown will state the sentence they are seeking, and give the legal basis for that sentence. The accused person or their counsel will do the same in reply.		Crown presents their submissions in the sentencing hearing first. Assuming that there is no substantial disagreement on the facts of the offence, Crown Counsel will begin by reading the facts (either from the Report to Crown Counsel or from the agreed statement of facts). Next, the Crown will state the sentence they are seeking, and give the legal basis for that sentence. The accused person or their counsel will do the same in reply.

	After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Accused persons should be aware that they will be invited to speak after their defence counsel finishes their submissions, and that there is no obligation to say anything. However, it is usually beneficial for an accused person to express remorse. Following the accused person'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]]'''.		After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Accused persons should be aware that they will be invited to speak after their defence counsel finishes their submissions, and that there is no obligation to say anything. However, it is usually beneficial for an accused person to express remorse. Following the accused person'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: How to Prepare for and Conduct a Sentencing Hearing]]'''.

	=== Defence strategies ===		=== Defence strategies ===

Nate Russell: /* E. Sentencing hearing */

2026-09-22T23:48:42Z

E. Sentencing hearing

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	== E. Sentencing hearing ==		== E. Sentencing hearing ==

	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. Duty counsel can assist self-represented accused persons with a sentencing negotiation with the Crown. Before pleading guilty, it is generally a good strategy to talk to 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, meaning that even if the accused person and the Crown agree on a possible sentence, the court might not follow their recommendation (see ''[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 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. Duty counsel can assist self-represented accused persons with a sentencing negotiation with the Crown. Before pleading guilty, it is generally a good strategy to talk to 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, meaning that even if the accused person and the Crown agree on a possible sentence, the court might not follow their recommendation (see ''[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: How to Prepare for and Conduct a Sentencing Hearing]]''' for the process of a guilty plea.

	The statutory range for all sentences is in the ''Criminal Code''. Always check the statutory range that existed at the time of the offence, as well as at the time of sentencing, as the accused person is entitled to the more favourable of the two. Ensure the minimum sentence has not been struck down by a successful ''Charter'' challenge or is about to be abolished by an act of Parliament.		The statutory range for all sentences is in the ''Criminal Code''. Always check the statutory range that existed at the time of the offence, as well as at the time of sentencing, as the accused person is entitled to the more favourable of the two. Ensure the minimum sentence has not been struck down by a successful ''Charter'' challenge or is about to be abolished by an act of Parliament.

Nate Russell: /* 3. Self-directed diversion */

2026-09-22T23:47:42Z

3. Self-directed diversion

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	The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with both fixing a trial date and writing a letter of application for diversion. Where an accused has not yet been determined to be an appropriate candidate for diversion, the court is unlikely to grant an adjournment for the purpose of considering diversion. That is, unless Crown Counsel tells the court that they believe diversion is likely to occur.		The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with both fixing a trial date and writing a letter of application for diversion. Where an accused has not yet been determined to be an appropriate candidate for diversion, the court is unlikely to grant an adjournment for the purpose of considering diversion. That is, unless Crown Counsel tells the court that they believe diversion is likely to occur.

	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.		See [[Diversion_Application_and_Sample_Letter_(1:App_C)\|Appendix C]] for an example of an application for diversion.

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

Nate Russell: Undo revision 62821 by Nate Russell (talk)

2026-09-22T23:06:09Z

Undo revision 62821 by Nate Russell (talk)

← Older revision		Revision as of 23:06, 22 September 2026
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	The judge must also consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody.		The judge must also consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody.

	=== Gladue reports ===		=== 1. Gladue reports ===

	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'' states that judges must pay attention to the circumstances of Aboriginal offenders. It 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 circumstances that have brought the accused person before the court; particularly, they must consider the impact of Canadian colonization, discrimination, and oppression on Indigenous accused persons and their families. This can include consideration of the ways in which the Canadian state's abusive and genocidal policies of residential schooling, land theft, and displacement, among others, created conditions which contributed to the Indigenous accused person's commission of the crime they are being sentenced for. As the Supreme Court noted in ''R. v. Ipeelee'', 2012 SCC 13, Gladue sentencing principles are not a "race-based discount." Rather, they were put in place in recognition that the Canadian state bears responsibility for the overrepresentation of Indigenous people in Canadian prisons, both because the Canadian state created conditions in Indigenous communities that lead to crime, and because the Canadian legal system is forcing its laws and punishments onto groups of people who existed on this land long before it did. The Supreme Court in ''Gladue'' specifically outlined that sentencing judges must pay attention to: first, the unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and second, the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of their particular Indigenous heritage or connection.		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'' states that judges must pay attention to the circumstances of Aboriginal offenders. It 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 circumstances that have brought the accused person before the court; particularly, they must consider the impact of Canadian colonization, discrimination, and oppression on Indigenous accused persons and their families. This can include consideration of the ways in which the Canadian state's abusive and genocidal policies of residential schooling, land theft, and displacement, among others, created conditions which contributed to the Indigenous accused person's commission of the crime they are being sentenced for. As the Supreme Court noted in ''R. v. Ipeelee'', 2012 SCC 13, Gladue sentencing principles are not a "race-based discount." Rather, they were put in place in recognition that the Canadian state bears responsibility for the overrepresentation of Indigenous people in Canadian prisons, both because the Canadian state created conditions in Indigenous communities that lead to crime, and because the Canadian legal system is forcing its laws and punishments onto groups of people who existed on this land long before it did. The Supreme Court in ''Gladue'' specifically outlined that sentencing judges must pay attention to: first, the unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and second, the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of their particular Indigenous heritage or connection.

Nate Russell: /* 1. Gladue reports */

2026-09-22T23:05:14Z

1. Gladue reports

← Older revision		Revision as of 23:05, 22 September 2026
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	The judge must also consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody.		The judge must also consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody.

	=== 1. Gladue reports ===		=== Gladue reports ===

	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'' states that judges must pay attention to the circumstances of Aboriginal offenders. It 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 circumstances that have brought the accused person before the court; particularly, they must consider the impact of Canadian colonization, discrimination, and oppression on Indigenous accused persons and their families. This can include consideration of the ways in which the Canadian state's abusive and genocidal policies of residential schooling, land theft, and displacement, among others, created conditions which contributed to the Indigenous accused person's commission of the crime they are being sentenced for. As the Supreme Court noted in ''R. v. Ipeelee'', 2012 SCC 13, Gladue sentencing principles are not a "race-based discount." Rather, they were put in place in recognition that the Canadian state bears responsibility for the overrepresentation of Indigenous people in Canadian prisons, both because the Canadian state created conditions in Indigenous communities that lead to crime, and because the Canadian legal system is forcing its laws and punishments onto groups of people who existed on this land long before it did. The Supreme Court in ''Gladue'' specifically outlined that sentencing judges must pay attention to: first, the unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and second, the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of their particular Indigenous heritage or connection.		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'' states that judges must pay attention to the circumstances of Aboriginal offenders. It 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 circumstances that have brought the accused person before the court; particularly, they must consider the impact of Canadian colonization, discrimination, and oppression on Indigenous accused persons and their families. This can include consideration of the ways in which the Canadian state's abusive and genocidal policies of residential schooling, land theft, and displacement, among others, created conditions which contributed to the Indigenous accused person's commission of the crime they are being sentenced for. As the Supreme Court noted in ''R. v. Ipeelee'', 2012 SCC 13, Gladue sentencing principles are not a "race-based discount." Rather, they were put in place in recognition that the Canadian state bears responsibility for the overrepresentation of Indigenous people in Canadian prisons, both because the Canadian state created conditions in Indigenous communities that lead to crime, and because the Canadian legal system is forcing its laws and punishments onto groups of people who existed on this land long before it did. The Supreme Court in ''Gladue'' specifically outlined that sentencing judges must pay attention to: first, the unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and second, the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of their particular Indigenous heritage or connection.

Nate Russell: 2026 update

2026-09-22T23:03:30Z

2026 update

Show changes

Nate Russell at 19:38, 27 November 2025

2025-11-27T19:38:36Z

← Older revision		Revision as of 19:38, 27 November 2025
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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.

	\|}		\|}

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

← Older revision		Revision as of 21:48, 22 September 2025
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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].