The state may seek to tender evidence of uncharged, yet related, offences in order to elevate an accused’s punishment at a sentencing hearing.

Section 725(1)(c) of the Criminal Code of Canada states:

725. (1) In determining the sentence, a court…

(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge (emphasis added.)

In R. v. Larche, [2006] S.C.J. No. 56, a unanimous Supreme Court of Canada describes this section as the “one true exception” to the general rule that offenders “are punished in Canada only in respect of crimes for which they have been specifically charged and of which they have been validly convicted” (paras. 1 and 2).

The Court requires a connection, or “nexus”, between the uncharged conduct and the offence scheduled for sentencing (para. 48).

Justice Fish, however, cautions at para. 49 that:

Care must also be taken, in applying s. 725 over the accused's objection, to ensure that the sentencing hearing is not transformed into a "trial within a trial". This is relevant to a court's exercise of discretion, once the threshold requirements of s. 725(1)(c) have been met, especially given the need for the accused to anticipate the extent of their jeopardy and the right to jury trial for certain offences…

Justice Fish emphasizes that "whether facts form part of the circumstances of the offence must ultimately be resolved on a case-by-case basis” (para. 50).

If a judge chooses to exercise his or her discretion and elevate an accused’s punishment by considering facts that could constitute the basis for a separate charge, section 725(2)(b) precludes further proceedings with respect to those offences.

Other considerations:

Counsel should also review the Supreme Court of Canada’s decision in R. v. Angelillo, 2006, SCC 55 , released on the same day as Larche, supra.

The Court suggests in Angelillo that there is still latitude under the common law for a judge to consider uncharged offences that do not meet the criteria of section 725(1)(c), if the facts “form part of the circumstances of the offender” (para. 31) (emphasis added).

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