Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2019-05-07 and last amended on 2018-12-18. Previous Versions

PART XXIIISentencing (continued)

Procedure and Evidence (continued)

Marginal note:Information accepted

  •  (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

  • Marginal note:Jury

    (2) Where the court is composed of a judge and jury, the court

    • (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

    • (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

  • Marginal note:Disputed facts

    (3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

    • (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

    • (b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

    • (c) either party may cross-examine any witness called by the other party;

    • (d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

    • (e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

  • R.S., 1985, c. C-46, s. 724
  • 1995, c. 22, s. 6

Marginal note:Other offences

  •  (1) In determining the sentence, a court

    • (a) shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences;

    • (b) shall consider, if the Attorney General and the offender consent, any outstanding charges against the offender to which the offender consents to plead guilty and pleads guilty, if the court has jurisdiction to try those charges, and shall determine the sentence to be imposed for each charge unless the court is of the opinion that a separate prosecution for the other offence is necessary in the public interest;

    • (b.1) shall consider any outstanding charges against the offender, unless the court is of the opinion that a separate prosecution for one or more of the other offences is necessary in the public interest, subject to the following conditions:

      • (i) the Attorney General and the offender consent,

      • (ii) the court has jurisdiction to try each charge,

      • (iii) each charge has been described in open court,

      • (iv) the offender has agreed with the facts asserted in the description of each charge, and

      • (v) the offender has acknowledged having committed the offence described in each charge; and

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

  • Marginal note:Attorney General’s consent

    (1.1) For the purpose of paragraphs (1)(b) and (b.1), the Attorney General shall take the public interest into account before consenting.

  • Marginal note:No further proceedings

    (2) The court shall, on the information or indictment, note

    • (a) any outstanding charges considered in determining the sentence under paragraph (1)(b.1), and

    • (b) any facts considered in determining the sentence under paragraph (1)(c),

    and no further proceedings may be taken with respect to any offence described in those charges or disclosed by those facts unless the conviction for the offence of which the offender has been found guilty is set aside or quashed on appeal.

  • R.S., 1985, c. C-46, s. 725
  • R.S., 1985, c. 27 (1st Supp.), s. 158, c. 1 (4th Supp.), s. 18(F)
  • 1995, c. 22, s. 6
  • 1999, c. 5, s. 31

Marginal note:Offender may speak to sentence

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

  • R.S., 1985, c. C-46, s. 726
  • R.S., 1985, c. 27 (1st Supp.), s. 159, c. 1 (4th Supp.), s. 18(F)
  • 1995, c. 22, s. 6

Marginal note:Relevant information

 In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.

  • 1995, c. 22, s. 6

Marginal note:Reasons for sentence

 When imposing a sentence, a court shall state the terms of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceedings.

  • 1995, c. 22, s. 6

Marginal note:Previous conviction

  •  (1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.

  • Marginal note:Procedure

    (2) Where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court shall, on application by the prosecutor and on being satisfied that the offender was notified in accordance with subsection (1), ask whether the offender was previously convicted and, if the offender does not admit to any previous convictions, evidence of previous convictions may be adduced.

  • Marginal note:Where hearing ex parte

    (3) Where a summary conviction court holds a trial pursuant to subsection 803(2) and convicts the offender, the court may, whether or not the offender was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the offender and, if any such conviction is proved, may impose a greater punishment by reason thereof.

  • Marginal note:Organizations

    (4) If, under section 623, the court proceeds with the trial of an organization that has not appeared and pleaded and convicts the organization, the court may, whether or not the organization was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the organization and, if any such conviction is proved, may impose a greater punishment by reason of that conviction.

  • Marginal note:Section does not apply

    (5) This section does not apply to a person referred to in paragraph 745(b).

  • R.S., 1985, c. C-46, s. 727
  • R.S., 1985, c. 27 (1st Supp.), s. 160
  • 1995, c. 22, s. 6
  • 2003, c. 21, s. 16

Marginal note:Sentence justified by any count

 Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence.

  • R.S., 1985, c. C-46, s. 728
  • 1995, c. 22, s. 6

Marginal note:Proof of certificate of analyst

  •  (1) In

    • (a) a prosecution for failure to comply with a condition in a probation order that the accused not have in possession or use drugs, or

    • (b) a hearing to determine whether the offender breached a condition of a conditional sentence order that the offender not have in possession or use drugs,

    a certificate purporting to be signed by an analyst stating that the analyst has analyzed or examined a substance and stating the result of the analysis or examination is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate.

  • Marginal note:Definition of analyst

    (2) In this section, analyst means a person designated as an analyst under the Controlled Drugs and Substances Act or the Cannabis Act.

  • Marginal note:Notice of intention to produce certificate

    (3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

  • (4) and (5) [Repealed, 2008, c. 18, s. 36]

  • Marginal note:Requiring attendance of analyst

    (6) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

  • R.S., 1985, c. C-46, s. 729
  • 1995, c. 22, s. 6
  • 1999, c. 31, s. 69
  • 2004, c. 12, s. 11(E)
  • 2008, c. 18, s. 36
  • 2018, c. 16, s. 221
 
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