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Criminal - Sentencing - Gardiner Hearing. R. v. Sithravel
In R. v. Sithravel (Ont CA, 2023) the Court of Appeal consider the 'Gardiner' guilty plea sentencing principle, which requires that only admitted or beyond-a-reasonable-doubt found facts be applied in sentencing, here in a case where the defendant had absconded between the guilty plea and sentencing:[6] The nub of the second ground of appeal is that the sentencing judge relied on the appellant being the “mastermind” of the robbery as a significant aggravating factor. The appellant argues that this constituted an error in principle because he did not admit this as part of the facts in support of the guilty plea and it was not proven by the Crown beyond a reasonable doubt in a Gardiner hearing: R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.
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[12] The sentencing judge interceded at various points to ensure that the appellant was prepared to admit the elements of the offence and to suggest that, if the appellant was prepared to admit the essential elements of the offence, a Gardiner hearing could be held regarding additional aggravating factors.
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[24] Some may feel an understandable sense of frustration in the appellant’s sentence appeal being allowed when he chose to abscond and not be present for the sentencing hearing. Had he been present, one expects his counsel would have drawn the sentencing judge’s attention to issues regarding facts not admitted or insisted on the Gardiner hearing which had been discussed at the time the plea was entered. However, the fact that the appellant absconded could not change the facts that were and were not admitted when the guilty plea was entered or the onus on the Crown, if it wanted to rely on additional facts in aggravation, to prove them beyond a reasonable doubt in a Gardiner hearing.
[27] The facts admitted in support of a guilty plea are important. An accused who admits facts in support of a plea is giving up their right to require the Crown to prove the facts establishing the offence and, in many cases, to prove aggravating factors: Gardiner; Criminal Code, s. 724(3)(e). Lack of clarity as to what facts are admitted in support of a guilty plea can, as in this case, generate errors in relation to factors relied on as aggravating or mitigating and create difficulties in ascertaining the factual record for appellate review.
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