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Criminal - Sentencing - Remorse

. R. v. Holder

In R. v. Holder (Ont CA, 2023) the Court of Appeal considered 'remorse' as a sentencing factor:
[24] The appellant argues that the trial judge then went on to rely on his finding that the appellant did not show remorse as an aggravating factor. This position is not borne out by a review of the trial judge’s reasons.

[25] In his reasons, the trial judge explicitly acknowledged that he could not rely on the appellant’s lack of remorse as an aggravating factor. In doing so, he quoted the following passage from this court’s decision in R. v. Shah, 2017 ONCA 872, at para. 8:
Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini 1999 CanLII 1885 (ON CA), [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 2004 CanLII 33468 (ON CA), 190 O.A.C. 354 (C.A.), at para. 2. [Emphasis added.]
[26] The trial judge went on to state that:
I find that the circumstances, particularly in [the appellant’s] absence of remorse indicates a lack of insight into the crime that he committed and demonstrates a substantial likelihood of future dangerousness, notwithstanding that he has taken certain programs while in custody. In my view, the objectives of denunciation and deterrence must be the primary objectives that inform the appropriate approach to sentencing in this case. [Emphasis added.]
[27] It is evident from this passage of his reasons that the trial judge did not rely on the appellant’s lack of remorse as an aggravating factor, but rather as evidence of his lack of insight into the crime that he committed and the likelihood of his future dangerousness. The use of lack of remorse for these purposes is explicitly contemplated in Shah. In addition, in the subsequent portion of his decision, the trial judge set out the aggravating factors that he did find relevant, and notably he did not refer to the appellant’s lack of remorse. Accordingly, we see no basis for finding that the trial judge improperly relied on the appellant’s lack of remorse as an aggravating factor.


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Last modified: 20-10-23
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