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Criminal - Sentencing - Age. R. v. T.J.W.
In R. v. T.J.W. (Ont CA, 2024) the Ontario Court of Appeal consider age as a criminal sentencing factor:[4] On the first ground, the appellant contends that the trial judge erred in principle by failing to consider how a penitentiary sentence would impact the appellant given that he was 76 years old at sentencing.
[5] We do not agree that the trial judge erred as suggested.
[6] The trial judge was aware of the appellant’s age. In describing the appellant’s circumstances, it was the very first fact he mentioned. In considering cases relied on by the Crown, the trial judge noted that R. v. N.F., 2016 ONSC 5607 involved a 74-year-old offender who received a three-year sentence for the sexual interference of his granddaughter. During sentencing submissions, in reaction to the Crown’s request for a 20-year prohibition order under s. 161(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, the trial judge noted that “[The appellant] is 76 that would mean he’s 96 before, so it is for life for all intents and purposes.” He nonetheless granted a 20-year prohibition.
[7] The appellant relies on cases such as R. v. Premji, 2021 ONCA 721, R. v. Laforme, 2022 ONCA 395, and R. v. Kennedy, 2024 ONSC 1741. In each of these cases, the offender’s advanced age was explicitly identified as a mitigating factor in sentencing. We are not persuaded that the trial judge erred in failing to do likewise here. Defence counsel did not argue that the appellant’s age was necessarily a mitigating factor nor that he had health conditions that could not be treated in prison. Nor was this a case, like Kennedy, where the defence filed evidence about the potential impacts of a custodial sentence on the offender due to their age.
[8] Had defence counsel asked the trial judge to take judicial notice of data from Statistics Canada about average life expectancy, as suggested on the appeal, it would have revealed that, in 2022, the remaining average life expectancy for a 76-year-old Ontario man was 11.4 years.[2] Recognizing that this statistic is subject to adjustment for individuals in the penal system, we nonetheless cannot conclude that the sentence imposed “so greatly exceeds [the appellant’s] expected remaining lifespan that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value”: Premji, at para. 3, citing R. v. M (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 74. . R. v. Beaudin
In R. v. Beaudin (Ont CA, 2024) the Ontario Court of Appeal considered the role of aging in sentencing:[9] We would simply add that the sentencing judge also addressed the possibility that the appellant’s risk and violent tendencies would decline with age, a point which he raises on appeal. The sentencing judge specifically noted that there was no evidence as to when any decline would commence in the appellant’s offending behaviour, at what rate, and to what extent it would reduce. At best, the evidence on this point was general and theoretical in nature. Should anything change in terms of the appellant’s current risk, it will be for the parole board to assess those changes as they become relevant: R. v. A.M., 2024 ONCA 587, at para. 42.
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