Stuart O'Connell Criminal Law Blog

When sentencing an Aboriginal offender, courts must consider:  (1)    The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. To do this courts are to take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples.  These matters provide the necessary context for understanding and evaluating the case‑specific information presented by counsel.  (2)      The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. R. v. Gladue , 1999 CanLII 679 (SCC) , at para. 66. Aboriginal Offender not required to establish causal conne

There are a number of reasons why a court will accept a guilty plea as a mitigating factor on sentence: ·        A guilty plea may be an expression of remorse and an acceptance of responsibility; ·        A guilty plea may save the justice system the time and expense of a trial, and ·        A guilty plea may provide a degree of finality from the perspective of the victims which would not exist without the plea.    A plea of guilt does not entitle an offender to a set standard of mitigation. The amount of credit a guilty plea attracts will vary in each case. R. v. F.H.L., 2018 ONCA 83, at para. 22 [guilty plea did not deserve any weight as a mitigating factor]. The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable. R. v. Fa

If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal.  In this situation, there is no need for the court to inquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act. Assuming that timing is an issue, the court is entitled to inquire further.  Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged.   R. v. Cunningham , 2010 SCC 10 (CanLII), [2010] 1 S.C.R. 331 at para. 48.   If counsel asserts that ethical reasons (or, to put it more broadly, a breakdown in the client-solicitor relationship) require that he/she no longer act for the client, the trial judge is obliged to order counsel removed without any inquiry into the particulars underlying the request. R. v. Cunningham , at paras. 48-49, 58;

A client is entitled to discharge counsel at any time for any reason. If a client does not want to be represented by a particular counsel, the court cannot force that representation on the client. On an application by trial counsel to be removed from the record, it is imperative that the client’s position be known to the judge hearing the application. Some inquiry, albeit one carefully circumscribed to avoid entrenching on client-solicitor privilege, is necessary.                R. v. Short , 2018 ONCA 1, a t para. 40 ( obiter ).         Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

A trial judge always retains an overriding discretion to accept or reject the recommendations of counsel about the sentence that should be imposed.  A trial judge is entitled to go beyond the Crown’s position on sentence if the sentence imposed is still reasonable. But when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions and provide further authorities. Ideally, the sentencing judge should give reasons for going beyond the Crown’s position. R. v. Grant , 2016 ONCA 639, at para. 164;  See also, R. v. Ibrahim , 2011 ONCA 611, at para. 16 [where reasons were not required]. It is an error in principle for the sentencing judge not to give the parties a chance to make further submissions prior to imposing a sentence above the Crown’s position. R. v. Hagen , 2011 ONCA 749 (CanLII), at para. 5 ;  R. v. Menary , 2012 ONCA 706 (CanLII), 298 O.A.C. 108 , at para. 3 ; R. v. Ibrahim , 2011 ONCA