INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the procedures for determining relevant facts in sentencing and burden of proof for both parties.
SECTION WORDING
724(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.
EXPLANATION
Section 724(3) of the Criminal Code of Canada establishes the process for resolving any factual disputes that arise in the sentencing phase of criminal proceedings. This section is crucial in ensuring that the sentence imposed on an offender is fair and based on accurate information. The first part of the provision requires the judge to request evidence if there is a dispute concerning a fact that is relevant to determining the sentence. This is to ensure that the judge has all the necessary information to make an informed and fair decision. However, the court may choose not to request this evidence if it has already been sufficiently adduced during the trial. The burden of proving any relevant fact is placed on the party wishing to rely on it. This places an onus on the defence and prosecution to provide accurate and credible evidence to support their respective positions. Parties are also allowed to cross-examine any witnesses called by the other party. This ensures that both sides have an opportunity to challenge and test the evidence presented by the other. Before relying on any disputed fact, the court must be satisfied on a balance of probabilities of its existence. This means that it must be more likely than not that the fact is true. This standard of proof is lower than the standard used in criminal trials, which requires proof beyond a reasonable doubt. However, an exception is made when it comes to aggravating facts or previous convictions of the offender. In these cases, the prosecutor must prove beyond a reasonable doubt that the fact exists. This is because these types of facts can greatly impact the sentence imposed on the offender and should therefore be proven to a higher standard. Overall, section 724(3) of the Criminal Code of Canada establishes a fair and effective process for resolving factual disputes in the sentencing phase of criminal proceedings.
COMMENTARY
Section 724(3) of the Criminal Code of Canada outlines the process that must be followed in the event of a dispute over any fact that is relevant to the determination of a sentence. This section is critical in ensuring that the sentencing process is fair and just for all parties involved. Firstly, the court is required to request evidence to be adduced in order to establish the existence of the disputed fact. This ensures that all necessary information is made available to the court before a decision on the sentence is made. Secondly, the party wishing to rely on a relevant fact has the burden of proving it. This principle is consistent with the broader legal principle of innocent until proven guilty, and it ensures that the sentencing process is based on fact rather than speculation or hearsay. Thirdly, either party may cross-examine any witness called by the other party. This allows for a thorough examination of the facts and ensures that all relevant information is taken into consideration in the determination of the sentence. Fourthly, 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. This ensures that the sentencing decision is based on solid evidence and is not influenced by assumptions or prejudice. Finally, the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. This principle is also consistent with the broader legal principle of innocent until proven guilty and ensures that any aggravating factors are established based on clear evidence rather than mere speculation. Overall, Section 724(3) provides a clear and comprehensive framework for resolving disputes over relevant facts in the determination of a sentence. By ensuring that all relevant information is considered and that any aggravating factors are established beyond a reasonable doubt, this section helps to ensure that the sentencing process is fair and just for all parties involved. It also helps to maintain the integrity of the criminal justice system by ensuring that sentencing decisions are made based on factual evidence rather than assumptions or prejudice.
STRATEGY
Section 724(3) of the Criminal Code of Canada outlined the provisions that govern the determination of a sentence in cases where there is a dispute with respect to any fact that is relevant. The section recognizes the importance of adducing evidence to substantiate facts that are disputed, which is crucial to the determination of the sentence. In dealing with this section, strategic considerations must be taken into account, and some strategies that could be employed include: 1. Preparation: One of the essential considerations when dealing with this section is preparation. Defense counsel must ensure that they are thoroughly prepared before coming to court, and must have all the necessary documents, information, and evidence required to substantiate their claims. 2. Investigating Relevant Facts: Given that the party wishing to rely on any relevant fact has the burden of proving it, counsel must invest the necessary time and resources into investigating all relevant facts, including facts contained in presentencing reports. This may involve engaging the services of experts or conducting extensive research. 3. Raising Challenges: If the evidence adduced by the other party is not sufficient, the defense can seek to challenge it by raising issues such as authenticity, relevance, or credibility. This can be done through cross-examination of the witnesses, or by presenting conflicting evidence. 4. Proving Aggravating Facts: Where the prosecutor seeks to establish any aggravating fact, they must establish proof beyond a reasonable doubt. Defense counsel must, therefore, focus on discrediting the evidence presented by the prosecutor or raising reasonable doubts. This may involve taking advantage of procedural loopholes or technicalities that cast doubt on the evidence presented. 5. Seeking Sentencing Alternatives: In cases where the burden of proof is met and the disputed fact is established, defense counsel can seek alternative sentencing options. This may involve presenting mitigating factors that would warrant a lesser sentence or making a plea bargain that would result in reduced charges or a lesser sentence. 6. Documenting Proceedings: Given the importance of adducing evidence, defense counsel must ensure that the proceedings are accurately documented. This includes keeping notes, recording interviews, or retaining relevant documentation. This can help to support the defense's case and can be used to challenge any conflicting evidence. In conclusion, when dealing with section 724(3) of the Criminal Code of Canada, strategic considerations must be taken into account. Defense counsel must be adequately prepared, investigate all relevant facts, challenge evidence presented by the other party, focus on proving aggravating facts, seek sentencing alternatives, and ensure that proceedings are accurately documented. By employing these strategies, defense counsel can achieve a favorable outcome for their clients.