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Criminal - Sentencing - Subsequent Convictions. R. v. M.V.
In R. v. M.V. (Ont CA, 2023) the Court of Appeal considered (and allowed) a sentencing appeal regarding sexual interference, and separate child luring and related, guilty pleas.
Here, the court considers the role of subsequent convictions as aggravating factors in sentencing:[62] In sentencing the appellant, the trial judge treated the prior sexual interference offences that the appellant had pleaded to before her as significantly aggravating the appellant’s overall degree of responsibility because those prior offences demonstrated an ongoing pattern of sexual offending. In my view, the fact that the appellant had committed the sexual interference offences prior to the child luring offences has little, if any, relevance in determining the length of the period of incarceration that the appellant should receive for the offences on the child luring information. I will explain.
[63] “Coke’s principle” holds that “subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence” (emphasis added): R. v. Wilson, 2020 ONCA 3, 384 C.C.C. (3d) 355, at para. 60; see also R. v. Skolnick, 1982 CanLII 54 (SCC), [1982] 2 S.C.R. 47. Put otherwise, even if offence #1 occurred before the offence being sentenced (offence #2), offence #1 cannot aggravate the sentence imposed for offence #2 unless the accused was convicted of offence #1 before committing offence #2. Stated in this way, Coke’s principle may be too broad. Some courts are of this view: R. v. Andrade, 2010 NBCA 62, 363 N.B.R. (2d) 159, at paras. 12-22; and see the obiter dictum in R. v. D.(G.), 2013 QCCA 726, at para. 20. Others are not: see, for example, R. v. Pete, 2019 BCCA 244, at para. 33. Uncertainty remains about the extent and intensity of the application of Coke’s principle in Ontario: see R. v. R.M., 2020 ONCA 231, 150 O.R. (3d) 369, at paras. 31-37.
[64] I do not propose to settle the general controversy over the entire influence of Coke’s principle but as I explained in Wilson, at para. 61, there is undeniable sense in the rule, depending upon the inference being drawn. For example, prior criminal convictions are ordinarily aggravating because it is contemptuous for offenders who have already been convicted to disregard that experience and offend again. If an offender has yet to be convicted of offence #1 that reasoning cannot apply. Similarly, a prior criminal record can be a predictor of the need for a harsher sentence to specifically deter the offender since the last penalty was not effective in doing so, given the subsequent offence. That inference is equally unavailable where no prior sentence has been imposed. Nor, in my view, can the earlier criminal conduct enhance the need for denunciation of the later offence. The sentence that denounces that offence is the one that is imposed for that offence.
[65] Having said this, it would be irrational not to recognise the relevance of repeat offending to the prospect of rehabilitation or even the need for incapacitation. This is so, regardless of the order in which the convictions occurred: R.M., at paras. 6, 31-37; Wilson, at paras. 65-67. Put simply, evidence that the accused was engaging in prior criminal conduct for which he was not yet convicted at the time of the offence being sentenced should not be treated as an aggravating factor calling for a harsher sentence as it does not speak to the gravity of the offence or the degree of responsibility of the offender, but it can appropriately impact on the goals of sentencing in the particular case, and influence the tools of sentencing that are employed, for example, incarceration or probation.
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