The 8-1 ruling effectively restored a 15-month sentence for a Quebec man
When imposing a sentence on an individual who has been found guilty of a criminal offence, judges can take into account all the circumstances of that offence – even if those circumstances gave rise to a separate charge that was laid and later withdrawn, the Supreme Court of Canada ruled in an 8-1 decision on Friday.
The high court’s task was to clarify the scope of s. 725(1)(c) of the Criminal Code, which gives courts the discretion to impose harsher penalties on an offender based on certain aggravating factors. Those factors include any circumstances of an offence that could potentially be the basis for a separate charge.
Writing for the majority, SCC Chief Justice Richard Wagner said nothing in s. 725(1)(c) bars courts from calculating sentences by factoring in the circumstances of an offence that could be the basis for a separate charge.
Courts can take this information into account even if that separate charge has already been laid, Wagner wrote. This information also does not lose its relevance if the charge is withdrawn.
Excluding this information “could potentially limit the use of the important efficiency tool that plea bargaining represents in the criminal justice system,” Wagner wrote. “The application of s. 725(1)(c) in the plea bargaining context can have significant benefits for both the Crown and the accused, in addition to reducing the number and complexity of trials.”
The decision effectively restored a 15-month conditional sentence for a Quebec construction contractor, overturning a Quebec Court of Appeal ruling that reduced the man’s sentence to six months.
Justice Malcolm Rowe dissented, stating he would have dismissed the appeal.
The SCC delivered its judgment in February but did not release its reasons until Friday.
The case can be traced back to 2021, when the contractor, Enrico Di Paola, was charged with various offences for offering benefits to an official who worked at a school that was part of the Commission scolaire de Montréal in exchange for public contracts. Di Paola later entered into an agreement with the Crown that resulted in the most serious charges being withdrawn. He pleaded guilty to a lesser offence.
During sentencing, a court considered the facts of the more serious, withdrawn charge as aggravating factors and gave Di Paola a 15-month conditional sentence. Di Paola appealed, arguing the court should not have considered those facts when crafting a sentence. The Quebec Court of Appeal sided with Di Paola, finding that the sentencing court should not have taken those facts into account.
Di Paola appealed to the SCC, asking the court to clarify the scope of s. 725(1)(c).
While the majority found that s. 725(1)(c) does allow sentencing judges to factor in the circumstances of an offence that could be the basis for a separate charge, even if that separate charge has been laid and withdrawn, the majority also clarified that there are limits around that practice.
To apply s. 725(1)(c), the facts related to the separate charge must be proven beyond a reasonable doubt, the majority said. The SCC decision also said that to guard against double jeopardy, any facts considered by a sentencing judge “must necessarily be noted on the information or indictment.”
Meanwhile, the Crown is obligated to avoid any conduct that would be unfair to the offender. According to the majority, the Crown must tell the offender and the sentencing judge which facts it plans to prove as aggravating factors during submissions on sentencing. This must be done promptly so the offender has time to respond effectively.
In the context of plea agreements, the offender must be informed of the Crown’s plans to rely on s. 725(1)(c) before the agreement is entered into. If the Crown fails to inform the offender that the risk they face is greater than they had anticipated when pleading guilty, courts can generally justify declining to apply s. 725(1)(c).
Because evidence showed that Di Paola knew certain facts would be presented as aggravating factors, the majority concluded there was no unfairness involved in his original sentencing.
In his dissent, Rowe wrote that he interpreted s. 725(1)(c) differently and found that the Quebec Court of Appeal did not err when it reduced Di Paola’s sentence.
Rowe set out three steps for sentencing judges to take to ensure the Crown operates fairly, none of which he said should be determinative of whether a judge has properly exercised their discretion under s. 725(1)(c).
The first step is ensuring that the Crown’s intention to rely on facts that could become the basis for a separate charge was revealed to the offender. The second step is considering whether the facts that could become the basis for a separate charge increase the sentencing range faced by an offender. If there is a substantial increase, “the Crown’s duty to act fairly will be more stringent,” Rowe wrote.
Lastly, sentencing judges should acknowledge in the sentencing reasons “that the offender is being sentenced for facts forming the basis of an offence more serious than the one to which he pled guilty.”
Rowe wrote that the judge who initially sentenced Di Paola “erred in the exercise of his discretion, in light of the purpose of s. 725(1)(c).”
Chantal Bellavance, a lawyer with Boro Frigon Gordon Jones who represented Di Paola, told Canadian Lawyer she appreciates the high court’s establishment of safeguards around the use of s. 725(1)(c).
“It wasn’t necessarily clear what information had to be given to the accused” when the Crown had plans to rely on that provision of the Criminal Code, Bellavance says. “Now it’s crystal clear – it’s really before the plea is even made.”
Bellavance also highlighted Rowe’s dissent, particularly the three-step analysis he sets out to ensure the Crown acts fairly. That analysis “is really beneficial and that I hope that courts will follow [it], even though it’s in the dissent,” she says. “It’s the same principles, really, that the majority is going with, but I find it clearer and more prudent as an approach.”
Ralph Mastromonaco, a sole practitioner who also represented Di Paola, says that while he appreciates the safeguards around how s. 725(1)(c) can be used, criminal defence lawyers will have to be more careful moving forward.
“In my opinion, it’s going to enhance the power… of the prosecution in a system that already accentuates the power imbalance between the prosecution and the defence,” the lawyer says.
“I think defence counsel need to be very careful going forward when they do their plea bargaining in a multi-count scenario,” he says. “[They] need to be very careful in terms of knowing what are the exposures of their client when they plead to the lesser charges to settle the case.”
However, Julien Fitzgerald, one of the lawyers for the Crown, says the high court’s decision demonstrates its concerns about efficiency in the criminal justice system. “It shows that they obviously want things to be fair for the accused, as do we,” Fitzgerald says. “But they also want to provide tools for actors of the justice system to act efficiently as recommended in the decision in [R. v. Jordan],” a landmark 2016 SCC ruling that imposed limits on the length of criminal trials.
Friday’s decision “draws attention to what’s important and the potential pitfalls of misusing [s. 725(1)(c)] while showing clearly how it can be used properly and why it's a good thing to use it properly,” Fitzgerald adds.
“The fact that we can use it now – and clearly the court has explained to all parties how to use it, what are the limits – that is going to be very useful.”
