A Values and Evidence Approach to Sentencing Purposes and Principles

Aggravating and mitigating factors in sentencing

When Canada’s sentencing legislation became law in 1996, there were two aggravating and no mitigating circumstances listed under S. 718.2(a). We now have 8 aggravating and (still) no mitigating factors listed in this section. Some of the aggravating factors seem rather unnecessary (e.g., “that the offence was a terrorism offence”). This is obviously not an exhaustive list of possible factors, but listing some and not others raises questions.

I have already mentioned the criticism that the government received in the 1990s for listing “sexual orientation” as one of the bases for hate-motivated crime. Given that a list does exist in the Criminal Code, it is understandable – and almost certainly symbolically important – that the current government has introduced legislation to add “gender identity or expression” to this list (Bill C-16, 42nd Parliament 1st session). However, even that list (in S. 718.2(a)(i)) is a bit of a problem. Why, for example, are religion and language listed in the section but not “political affiliation”?Footnote 49 Why are there no mitigating factors listed even though the section has been in place for 20 years? It would appear to me to be sensible to rethink the list of aggravating factors and to think clearly about what might be mitigating factors in sentencing.

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