Victims’ Rights and the Role of Aggravating and Mitigating Factors in Sentencing

by GS

Victims’ rights play an important role throughout the criminal justice process, including during sentencing. One of the ways in which victims are acknowledged within the justice system is through the consideration of their experiences through the use of aggravating factors at the sentencing stage. Section 718 of the Criminal Code establishes that the purpose of sentencing is not only to protect society, but also to promote respect for the law and to contribute to the maintenance of a just, peaceful, and safe society.[i] These objectives are achieved through the denunciation of unlawful conduct, the provision of reparations for harm done to victims or the community, and the promotion of responsibility and accountability among offenders.[ii] Beyond the purposes of sentencing, the Criminal Code provides judges with a range of aggravating factors that may increase the severity of a sentence, allowing the court to respond meaningfully to the circumstances of the offence and the harm caused.[iii] This allows the justice system to carefully evaluate the context in which crimes occur to ensure that sentences are fair, proportionate, and appropriate.[iv] Targeted crimes, such as hate-motivated offences and acts rooted in systemic discrimination, represent more than isolated incidents; they reflect broader societal structures and beliefs that can have far-reaching effects on victims and communities.[v] The Canadian sentencing framework addresses these realities by requiring courts to consider aggravating and mitigating factors when sentencing, enabling judges to assess the full context of an offence and deliver a more comprehensive and informed sentence.

Canada’s sentencing legislation was enacted in 1996 and initially included two aggravating factors under section 718.2(a) of the Criminal Code.[vi] Since then, the list of aggravating factors has expanded to eight, while no corresponding statutory list of mitigating factors exists.[vii] Following a guilty plea or verdict, a judge must determine a sentence that is both fair and proportionate to the offence.[viii] While judges are bound by mandatory sentencing provisions where applicable, they retain discretion to consider factors beyond the essential elements of the offence, including the circumstances of both the victim and the offender, as well as the broader social context.[ix] Aggravating and mitigating factors are central to this decision-making process, allowing judges to tailor sentences to the specific facts of each case.[x]

Section 718.2 of the Criminal Code outlines several aggravating factors that must be considered at sentencing.[xi] These include evidence that an offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, disability, sexual orientation, gender identity, or similar grounds.[xii] Other aggravating circumstances include offences committed against victims under the age of 18, abuse of a position of trust or authority, significant impact on the victim in light of their personal circumstances, and offences committed against individuals providing health care services.[xiii] Additional factors include offences connected to criminal organizations or terrorism, offences committed while the offender was on parole or subject to a conditional sentence, and offences that interfere with the access or delivery of health services.[xiv]

These aggravating factors are essential in addressing targeted and systemic harm. By recognizing these factors, courts are better equipped to understand the broader impact of criminal conduct, particularly in cases involving vulnerable or marginalized victims.[xv] Although not all aggravating factors apply universally, their inclusion represents an important advancement in acknowledging victims’ rights and experiences within the sentencing process and signals a broader commitment to incorporating victim perspectives throughout the criminal justice system.[xvi]

Expanding the consideration of victims’ experiences beyond the immediate harm also enhances the justice system’s responsiveness to the broader social and emotional impact of crime. Victim impact statements, for instance, provide a formal avenue for victims to describe the physical, emotional, psychological, and financial consequences they have suffered. [xvii] This process not only informs the judge’s decision but also helps victims feel acknowledged and validated. By integrating such statements alongside aggravating factors, courts are better able to weigh the gravity of the offence, particularly in cases where harm extends beyond the individual to families, communities, or vulnerable populations.[xviii] This holistic approach ensures that sentencing is not purely procedural but recognizes the lived realities of those most directly affected by crime, reinforcing the principle that victims’ rights are integral to achieving justice.[xix]

In contrast, mitigating factors may serve to reduce a sentence but are not expressly enumerated in the Criminal Code. Despite the absence of a statutory list, Canadian courts routinely consider a wide range of mitigating circumstances, including an offender’s lack of prior criminal history, expressions of remorse, efforts at rehabilitation, and other extenuating factors.[xx] A significant development in this area arose from the Supreme Court of Canada’s 1999 decision in R v Gladue, which emphasized the need for sentencing judges to consider the unique systemic and historical factors affecting Indigenous offenders.[xxi] While Gladue does not establish a fixed list of mitigating factors, courts may take into account considerations such as the intergenerational trauma of residential schools, displacement from traditional lands, systemic discrimination, cultural loss, and the impacts of substance abuse within Indigenous communities.[xxii] These considerations allow for a more nuanced and individualized sentencing approach that reflects the lived realities of Indigenous offenders.[xxiii]

Public perception of the sentencing process is also a critical consideration in ensuring a proper application and balancing of victim and offender rights throughout the criminal justice process. When sentencing decisions appear subjective or inconsistent, concerns may arise regarding fairness and transparency.[xxiv] If the factors influencing a sentence are not clearly articulated, public confidence in the justice system may be undermined. It is therefore essential that judges clearly explain how aggravating and mitigating factors influence sentencing decisions, ensuring transparency, and reducing the risk of misunderstanding or unjust criticism.[xxv] This allows for greater understanding among all parties in what the court considered as important and relevant information and how that was weighed against the facts of the case. Solidifying mitigating factors alongside the established aggravating ones within the Criminal Code, may help to eliminate the confusion around their application in sentencing. While judicial discretion allows for a contextual and individualized analysis of each case, it also presents challenges. Personal biases, whether conscious or unconscious, may influence sentencing outcomes, potentially leading to inconsistency.[xxvi] Additionally, the careful consideration of multiple factors can increase the length and complexity of proceedings, contributing to delays within the justice system.

Despite these challenges, it is a positive step for the Canadian justice system to consider aggravating and mitigating factors in sentencing. These factors allow for a more nuance examination of the circumstances of the people involved in a crime and the context in which it happens, allowing for the courts to hopefully better tailor sentences to the needs of victims and offenders. These factors also serve as an acknowledgment of what both these victims and offenders have gone through, which will hopefully help both parties in dealing with the aftermath of the crime and the judicial process. Moreover, the introduction of more explicit mitigating factors in the Criminal Code could further strengthen the legitimacy and consistency of sentencing, provided that such measures preserve judicial flexibility and allow courts to fully consider the unique circumstances of each case. Regardless of if mitigating factors become better defined within the Criminal Code, I believe, that it remains crucial for judges to clearly communicate the role of aggravating and mitigating factors in sentencing decisions. Greater transparency within this process will enhance public trust in the justice system and provide better understanding of the sentencing process.

Endnotes

[i] Criminal Code, RSC 1985, c C-46, s 718.

[ii] Ibid.

[iii] Criminal Code, RSC 1985, c C-46, s 718.2 (a).

[iv] Ibid.

[v] Ibid.

[vi] Department of Justice Canada, “A Values and Evidence Approach to Sentencing Purposes and Principles” (20 January 2023) online: <canada.justice.gc.ca/eng/rp-pr/jr/vea-avp/p8.html>.

[vii] Ibid.

[viii] Supra note 1.

[ix] Supra note 6.

[x] Ibid.

[xi] Supra note 3.

[xii] Ibid.

[xiii] Ibid.

[xiv] Ibid.

[xv] Supra note 6.

[xvi] Ibid.

[xvii] Department of Justice Canada, “Victim Impact Statements” (8 November 2024) online:< justice.gc.ca/eng/cj-jp/victims-victimes/sentencing-peine/vis-dv.html>.

[xviii] Ibid.

[xix] Ibid.

[xx] Department of Justice Canada, “Applying R v Gladue: The Use of Gladue Reports and Principles” (22 January 2024) online: <justice.gc.ca/eng/rp-pr/jr/gladue2/summary-resume.html>.

[xxi] Ibid.

[xxii] Ibid.

[xxiii] Ibid.

[xxiv] Julian V. Roberts, Mitigation and Aggravation at Sentencing, (Cambridge: Cambridge University Press, 2011) at 3.

[xxv] Ibid at 4.

[xxvi] Ibid.

 [AW1]maybe change to "allowing"

 [AW2]Would change to flow better: "for instance, victim impact statements provide a formal avenue for victims to describe the physical, emotional, psychological, and financial consequences they have suffered."