Sentencing Evidence and Procedure

Overview

In this part of the criminal-law course, “evidence and procedure” concerns sentencing, following JurisClasseur Québec, Droit pénal général, fascicule 23. The question is no longer whether the Crown has proved guilt, but how a court establishes the facts and follows a fair process to impose a lawful sentence. Trial admissibility rules cannot simply be transferred unchanged to this stage.

Sections 720–729 of the Criminal Code organize the hearing, reports, submissions and proof. The conviction constrains the factual foundation of the sentence, while disputed additional facts must be addressed under the applicable burden of proof.

Learning Objectives

• Identify the parties' participation rights and the court's procedural duties at sentencing.
• Apply the correct standard of proof to disputed facts and prior convictions.
• Distinguish a negotiated joint submission from an ordinary sentencing recommendation.

Timing, attendance and participation

Sentencing proceedings must be conducted as soon as practicable after guilt is established. An adjournment may be appropriate to obtain necessary information. Under section 720(2), the court may also delay sentencing with the consent of the Attorney General and offender, after considering the interests of justice and any victim, to permit participation under court supervision in a provincially approved treatment program or restorative justice process as defined in section 715.44. This amended provision took effect on July 18, 2026 and also applies to pending matters under section 111(2) of the Protecting Victims Act. JurisClasseur describes Quebec authority concerning an inherent adjournment power; that separate basis does not remove the statutory route's consent requirement (nos 2–5).

The individual offender is in principle present at sentencing, subject to the legally authorized exceptions and attendance arrangements. Representation by counsel does not automatically dispense with every personal-attendance requirement. The Charter continues to apply, although particular protections operate differently after guilt has been established (nos 6–10).

Under section 723, the defence and prosecution have an opportunity to address relevant sentencing facts. They are the parties to the criminal proceeding. The victim has statutory participation rights but is not a third prosecuting party, and the prosecutor is not the victim's personal lawyer (nos 11–13 and 21).

Before imposing sentence, section 726 requires the court to give an offender who is present an opportunity to speak personally. This final opportunity is distinct from testimony and counsel's submissions. It does not reopen the factual basis essential to the conviction. An omission to provide it is an error, but does not automatically invalidate the sentence regardless of prejudice (no 12).

Recommendations and joint submissions

An ordinary recommendation

Where the parties make different proposals, the judge determines the fit sentence under ordinary sentencing principles. If considering a sentence above that sought by the Crown, the judge must alert the parties and allow further submissions. The Crown's proposal is not an absolute sentencing ceiling; fair notice and an opportunity to respond remain necessary (no 14).

A negotiated joint submission

A joint submission negotiated in exchange for a guilty plea attracts the demanding public-interest test described in R. v. Anthony-Cook, 2016 SCC 43. The judge should depart only where the proposed sentence would bring the administration of justice into disrepute or otherwise be contrary to the public interest. A personal preference for a different sentence is insufficient (nos 15–19).

The court considers the bargain's context and its benefits to the administration of justice. The parties should explain the relevant circumstances and the basis for their recommendation. A jointly proposed unlawful sentence does not become lawful through agreement. JurisClasseur distinguishes the situation in which agreement arises only after a contested determination of guilt; the negotiated-plea standard must not be applied indiscriminately to every convergence of proposals.

If the judge remains concerned, the parties must be told the concerns and allowed to respond. They must also be informed of the possibility of seeking withdrawal of the plea. Permission to withdraw is not automatic. A decision to reject the submission requires clear and convincing reasons (no 20).

The perspective is that of a reasonable person informed about the case, the role of negotiated pleas and the benefits of certainty. Begin with the bargain's foundation: the strength of the Crown's case, the concessions made, the trial avoided, witness concerns and any assistance in other proceedings. Assess the proposal in that context before deciding whether its acceptance would indicate a failure of the justice system. An omitted mandatory order or another illegality must be raised with the parties; an optional condition that the judge would personally prefer does not supply the same basis for intervention (nos 17–19).

Worked example: a lenient-looking joint submission

Factual Scenario

In this hypothetical, the parties negotiate a lawful sentencing recommendation in exchange for a guilty plea. A necessary witness is unavailable for trial, the defence has a substantial evidentiary argument, and the plea secures a conviction while avoiding testimony by a vulnerable victim. The judge initially considers the proposed sentence too lenient by comparison with sentences after contested trials. The parties have addressed the mandatory orders. Decide whether that comparison justifies rejection.

Establishing the sentencing facts

Section 724 permits reliance on information properly received and facts agreed by the parties. Following a jury verdict, facts essential to that verdict are treated as proved. The sentencing judge must not adopt a factual finding compatible only with a verdict the jury rejected. Other relevant findings require their own assessment (no 32).

When a relevant fact is disputed, section 724(3) governs:

These requirements prevent the use of an allegation as an aggravating finding merely because it appears in a police account, counsel's submission or a report. The higher standard for aggravating facts is not lowered by the general flexibility of the sentencing hearing (nos 32–34).

Worked example: a disputed weapon allegation

Factual Scenario

In this hypothetical, an offender admits assault but disputes the Crown's allegation that a knife was used. Assume the conviction does not itself resolve that allegation. The offender also relies on completion of a treatment program as mitigation, but the Crown disputes completion. Both assertions appear in the presentence report. Determine the burden for each disputed fact.

Reports, hearsay and victim information

A presentence report under section 721 helps the judge understand the offender's background, circumstances and prospects. It should be accurate, independent and balanced. The court assesses its weight, and its author can be questioned about deficiencies. A disputed statement in the report remains subject to section 724(3) (no 35).

Section 723(5) permits hearsay at sentencing. JurisClasseur requires credibility and reliability and notes judicial disagreement concerning its treatment when used to prove aggravating facts. The court can require an available and compellable person with direct knowledge to testify in the interests of justice. Neither “all hearsay is excluded” nor “every hearsay allegation is accepted” states the rule (no 36).

A victim impact statement describes the harm, loss and effects of the offence within the statutory framework. It does not make the victim responsible for selecting the sentence or permit unrelated allegations to become proved facts. The court must attend to the statutory opportunity for the victim to prepare and present the statement (nos 21–28).

As soon as feasible after guilt and before sentencing, the court must ask the prosecutor whether reasonable steps have been taken to provide a preparation opportunity. An adjournment may permit preparation or relevant victim evidence if it would not interfere with the proper administration of justice. The filed statement is transmitted to the parties; the victim may request to read it, with the statutory presentation arrangements available. The court considers relevant portions and disregards inappropriate material. These steps also matter when the parties have negotiated a plea (nos 23–28; Criminal Code, section 722).

Previous convictions require proof beyond a reasonable doubt if disputed. Where the prosecution seeks a greater punishment by reason of previous convictions under section 727, the required notice must precede the plea. The notice requirement and proof of the conviction are separate steps; this rule should not be confused with every use of criminal history in an ordinary sentencing analysis (nos 37–38).

Worked example: a contested victim statement

Factual Scenario

A filed victim impact statement attributes six months of lost income to the offence and also criticizes an unrelated police investigation. In this hypothetical, the defence supplies payroll records showing work during part of that period and identifies the precise dates in dispute. The Crown asks the judge to use the full income loss as an aggravating fact. The defence requests that the disputed passage be disregarded or that questioning be permitted. Determine how participation and proof interact.

The judge's role and reasons

The judge may seek necessary evidence and require witnesses, but must maintain impartiality and permit the parties to respond. The flexible process does not authorize a private investigation or reliance on undisclosed internet research. Where necessary information is missing, including relevant information concerning an Indigenous offender, the court should take appropriate steps to obtain it through a fair process (nos 29–30).

The sentence must be explained with intelligible reasons linking the result to the offence, the offender and the applicable principles. Adequate reasons allow the parties to understand the decision and an appellate court to review it. A claimed error must be assessed under the rules governing sentence appeals, rather than treated as an automatic entitlement to a new sentence (no 31).

A useful structure identifies the proved facts and any disputed findings, the applicable lawful options, the weight of objectives and individual circumstances, and the reasons for the final disposition and orders. Where multiple counts or presentence custody are involved, explain totality and credit rather than leaving the arithmetic implicit. The integrated sentencing-package problem connects these procedural findings to the choice of sanctions.

Practice Checklist

• Identify agreed facts, findings essential to the verdict and genuinely disputed facts.
• Apply the Crown's reasonable-doubt burden to aggravating facts and prior convictions.
• Check report accuracy, hearsay reliability and opportunities for cross-examination.
• Identify whether a recommendation qualifies as a negotiated joint submission.
• Ensure notice and further submissions before the court departs in a way requiring them.
• Address victim participation, the offender's personal opportunity to speak and reasons for sentence.