Difference between revisions of "Resolving Criminal Matters Prior to Trial (1:VI)"

Prior to the sentencing hearing the accused and counsel for the accused should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document.  The Report to Crown Counsel is typically where crown counsel will read/summarize the facts of the offence from.  If the accused person disagrees with a material aggravating fact summarized in the Report to Crown Counsel, that disagreement should be canvassed with Crown Counsel and, where the parties cannot agree, the party seeking to establish that (aggravating or mitigating) fact must present evidence of the disputed facts (see s. 724 of the Criminal Code for how the court determines disputed facts).  Note: Sometimes this needs to be done in the moment where crown counsel summarizes an aggravating fact and the accused and their counsel realizes only then that the aggravating fact is not agreed to.

For serious offences, prior to the actual sentencing hearing the accused or counsel for the accused should consider whether the guilty person would benefit from seeking a Pre-Sentence Report under s. 721 of the ''Criminal Code''. A Pre-Sentence Report can only be ordered after a guilty plea or finding is made.  It is prepared by probations, and is considered a “neutral third party” report It is a formal report and can help or harm the interests of the accused. If the accused is experiencing mental health issues, the Pre-Sentence Report can include a psychological report.  A favourable psychological report can reduce an accused’s eventual prison sentence.  A psychological disorder that makes a person more likely to lose control of their emotions or impulses mitigates the moral culpability of an offender for offences where that emotion or impulse contributed to the occurrence of the offence.  Where an accused person desires to obtain a psychological opinion they should consider obtaining a private psychological report from a psychologist of the guilty person’s choosing instead of a Pre-Sentence Report with a psychological component.  A private psychological report commissioned by the accused person or their counsel has the advantage of being legally privileged and is only disclosed if it helps the accused.  This avoids the possibility that exists with a Pre-Sentence Report that the contents of that report will suggest that the offender has limited prospects of rehabilitation, thereby supporting a lengthier custodial sentence.

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 simply blend together their summary of the facts of the offence and their position on the appropriate sentence and the accused or counsel for the accused will do the same in reply.

After hearing Crown recommendations and then defence submissions, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see '''Appendix E: How to Prepare for and Conduct a Sentencing Hearing'''.

It is important to consult '''sections 718 and 718.2 of the ''Criminal Code''''' for the principles in sentencing that the judge will consider, and '''address these issues when drafting your submissions'''. The accused should also read up to section 743.1 of the ''Criminal Code'' before any sentencing hearing.

There tend to be two broad strategies for presenting an accused person’s circumstances. With first time offenders, this typically involves presenting the lead-up to the offence as a unique set of unusual circumstances that caused a momentary and exceptional loss of control and then showing what has changed in the life of the accused to avoid a similar set of unusual and exceptional circumstances. The accused should seek to show the court that the problem has already been cured and will not recur, and such a harsh sentence is unnecessary. With repeat offenders, it is more strategic to present the disadvantageous life circumstances, such as lack of family support or lack of employment/educational opportunities, which may have contributed to the offence being committed. The accused should then show that they have changed their outlook and is seeking to turn their life around.  This involves in part an understanding of an accused person’s own situation, and an understanding of the severity of the offence.