Defence counsel must be alert to improper Crown submissions at a sentencing hearing. 

One area of concern is when the prosecution suggests that it is aggravating for individuals to maintain their innocence and to fail to demonstrate remorse following a finding of guilt at trial. As a general rule, an offender’s lack of remorse is a neutral factor that carries no weight in a judge’s decision-making process. As discussed by Justice Melvyn Green in R. v. Al-Saedi, 2017 ONCJ 2014 at para. 23:

It must also be borne in mind that there are at least three scenarios where the absence of remorse ought not, under any circumstances, to have any weight on sentencing. First, where the offender maintains his innocence despite an adverse finding at trial; mistaken convictions are hardly unknown to Canadian law. Second, where the offender acts in principled disobedience of the law; for example, a dairy farmer sincerely convinced that pasteurizing his milk jeopardizes his consumers' health: see, for example, R. v. Schmidt, 2014 ONCA 188. And third, where the offence itself channels the imposition of majoritarian morality untethered to an empirical risk of harm; by way of historical illustration, those sentenced for having same-sex relations with other consenting adults, or, of more current vintage, persons found guilty of simple possession of marihuana.

Justice Melvyn reminds us that there is often no foolproof way to determine what happened in the past, nor does the criminal justice system require that the prosecution prove an accused’s guilt to an absolute certainty. The standard of proof beyond a reasonable doubt, while demanding, still allows room for error. For example, in a case that hinges upon an assessment of credibility, it is possible that a judge or a jury may erroneously reject an accused’s claim of innocence.

The bottom line is that individuals are permitted to maintain their innocence and may express an intention to appeal their conviction without fear that the prosecution will use this as an aggravating factor at sentencing.

Other considerations

·    A judge will give an individual credit for a genuine expression of remorse at a sentencing hearing.

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