Section 726 of the Criminal Code of Canada states:

Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say.

Justice Melvyn Green discusses this mandatory sentencing procedure in R. v. Al-Saedi, 2017 ONCJ 204 at para. 11:

Although the word is rarely used, contemporary criminal procedure continues to recognize an historical common law right of "allocution" or "allocutus" -- an offender's opportunity to directly address the court prior to sentencing. The right is statutorily preserved in s. 726 of the Code… The procedure appears intended to grant the offender a measure of personal agency in the sentencing process and to provide him or her an opportunity to present information in mitigation of sentence, usually an apology, an expression of contrition or remorse, an explanation of the circumstances motivating the crime, or a promise to reform.

Counsel should never overlook the potential benefits of an offender’s right to address the court when preparing for a sentencing hearing. Consider the powerful impact that the offender's comments had on Justice Green in deciding that a conditional discharge was an appropriate punishment for the serious offences of personating a police officer and possession of cocaine:

…the palpable sincerity of Al-Saedi's remorse firmly situates him among "those whose character leads us to redefine their misconduct”… (Al-Saedi, supra, at para. 36 - The offender's comments are attached as an appendix to the decision.)

Counsel must also be mindful that an offender has the potential to make things worse by addressing the court. Counsel would be well advised to review any written comments that the offender intends to read aloud at the hearing.

A client has the final decision-making authority on whether to address the court.

 

 

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