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Criminal - Sentencing - Other Offences [CCC 725]. R. v. Chizanga
In R. v. Chizanga (Ont CA, 2024) the Ontario Court of Appeal dismissed a murder appeal on all the advanced arguments. Here the court considers the use of evidence of 'untried offences' (Larche errors) in sentencing [here CCC 718.2 and 725]:(a) The trial judge did not commit a Larche error
[118] Section 725(1) of the Criminal Code provides certain circumstances in which evidence of untried offences can be considered by a sentencing judge as aggravating factors pursuant to s. 718.2(a). Under s. 725(1)(c), a sentencing judge may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. In Larche, the Supreme Court set out the test for when a trial judge may resort to s. 725(1)(c) where an accused does not consent. A trial judge can rely on s. 725(1)(c) where: 1) the facts of the untried conduct could constitute a separate charge; 2) the facts have been proven beyond a reasonable doubt; 3) the facts are related to the offence before the court (i.e., there is a sufficient nexus or connexity); and 4) there is no unfairness to the accused.
[119] In Larche, Fish J. commented that in determining whether there is a sufficient nexus between the untried conduct and the offence, courts should give appropriate weight to their proximity in time and to their “probative worth as evidence of system or of an unbroken pattern of criminal conduct”: at para. 55. .... . R. v. Hoang
In R. v. Hoang (Ont CA, 2024) the Ontario Court of Appeal considered CCC 725 [Sentencing - Procedures and Offences - Other Offences] sentencing issues:(a) The trial judge did not err in considering uncharged offences under s. 725(1)(c) of the Criminal Code
[64] The appellant testified to participating in the trafficking operation for two years prior to being apprehended. The trial judge considered this fact, and the evidence of the sale of volumes of narcotics in the past for which no charges had been laid, as a further aggravating factor, pursuant to s. 725(1)(c) of the Criminal Code and the Supreme Court of Canada’s decision in R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762. The appellant alleges that this was unfair.
[65] Section 725(1)(c) permits a court to consider “any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” The conditions for applying s. 725(1)(c), as set out in Larche, at paras. 45-46, are: (i) the uncharged offences must themselves be proved beyond a reasonable doubt; (ii) there must be a close connection between such offences and the ones for which the accused is being sentenced; and (iii) there must be no unfairness to the accused in considering this circumstance. See also R. v. Shin, 2015 ONCA 189, 322 C.C.C. (3d) 554, at paras. 91-92 and 96. The trial judge found that all of these conditions were satisfied in this case.
[66] I see no error in the trial judge’s consideration of the appellant’s own testimony of involvement in drug trafficking or in his application of the Larche criteria.
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