Accused convicted of various assault and weapons offences. Non-custodial sentences imposed. Judge agreed with defence counsel during the sentencing that the accused’s actions were out of character, and that perhaps the accused’s drink had been spiked.
Held: Appeal allowed. Sentence of 2 years less one day jail plus probation imposed.
Proper procedure set out in 724(3) CC. “Where, as here, there is an objection to facts on sentencing, the judge does not have discretion to decide whether the facts should nonetheless be accepted without complying with s. 724(3) of the Code … ‘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.” Defence was required to establish ‘facts’ that mitigated the accused’s moral blameworthiness on a balance of probabilities.
N. Whitling – Defence Counsel