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Criminal - Sentencing - Evidence. R. v. D.B. [evidence/standard of proof CCC 724(3)(e)]
In R. v. D.B. (Ont CA, 2025) the Ontario Court of Appeal allows a criminal sentencing appeal, here where the main issue was family 'collateral consequences'.
Here the court considers the court's sentencing use of "alleged social media posts referenced in A.H.’s victim impact statement and the pre-sentence report, treating them as aggravating factors without requiring proof beyond a reasonable doubt":(3) Reliance on Unproven Social Media Posts Without Procedural Fairness
[26] The appellant further submits that the trial judge placed undue weight on alleged social media posts referenced in A.H.’s victim impact statement and the pre-sentence report, treating them as aggravating factors without requiring proof beyond a reasonable doubt. As a self-represented litigant, he was not advised of his right to contest these allegations or to request a hearing pursuant to R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.
[27] The Crown contends that the trial judge referred to the posts in assessing the appellant’s lack of remorse rather than as aggravating factors, and that the appellant had an opportunity to respond but chose not to challenge them.
[28] In my view, the sentencing reasons suggest that the trial judge did treat the alleged posts as aggravating. She referred to them as demonstrating a “complete lack of insight,” emphasized their continuing harm to the victim, and cited them as increasing the need for specific deterrence. These observations appear to have informed the overall severity of the sentence.
[29] Under s. 724(3)(e) of the Criminal Code and the principles in Gardiner, any fact relied upon to increase the punishment must be proven beyond a reasonable doubt if it is disputed. While sentencing judges may consider credible hearsay for certain purposes—such as assessing remorse—reliance on such material to justify a harsher sentence engages the procedural protections mandated by Gardiner. In this case, the evidence of the posts was unsworn, not tested through cross-examination, and did not satisfy the threshold of proof required for aggravating factors. Had the appellant disputed them, a Gardiner hearing would have been necessary, requiring the Crown to prove the allegations and permitting the appellant to seek leave to cross-examine A.H.: R. v. Phinn, 2015 NSCA 27, 357 N.S.R. (2d) 212, at paras. 48-51; R. v. V.W., 2008 ONCA 55, 89 O.R. (3d) 323, at paras. 29-30.
[30] In this context, it was important for the sentencing court to ensure that the self-represented appellant was made aware of his right to contest the allegations and of the implications of failing to do so. The Crown rightly acknowledges that sentencing judges have a duty to assist self-represented litigants by clearly explaining procedural options, particularly where their legal significance may not be apparent. Given the serious nature of the charges, the appellant’s lack of familiarity with the sentencing process, and his request for guidance, further explanation would have been warranted: R. v. Eizenga, 2011 ONCA 113, 270 C.C.C. (3d) 168, at paras. 66-67; R. v. Tossounian, 2017 ONCA 618, 354 C.C.C. (3d) 365, at para. 38.
[31] In the absence of that procedural guidance, and considering the trial judge’s reliance on the alleged posts, the fairness of the sentencing process was compromised. This affected the assessment of the appellant’s rehabilitative prospects and led to an undue focus on specific deterrence. In these circumstances, the sentencing was affected by a material procedural deficiency amounting to an error in principle.
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