Aggravating Factors
Aggravating factors are circumstances that increase the seriousness of an offence for sentencing purposes — and accordingly increase the sentence imposed. Section 718.2(a) of the Criminal Code requires sentencing courts to consider aggravating and mitigating factors before arriving at a fit sentence. Some aggravating factors are listed by statute; many others are recognized in case law.
Statutory aggravating factors
Section 718.2(a) lists several specific aggravating factors that any sentencing court must take into account, including: evidence the offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity, or any other similar factor; evidence the offender abused a position of trust or authority; evidence the offence had a significant impact on the victim because of their personal circumstances (including age and vulnerability); evidence the offence was committed against an intimate partner, the offender's child, or any vulnerable family member; evidence the offence was committed for the benefit of a criminal organization; and evidence the offence involved terrorism.
Common-law aggravating factors
Beyond the statutory list, sentencing courts routinely treat many other factors as aggravating, including: the use of a weapon; degree of planning and premeditation; use of violence beyond what was necessary; the offender's prior criminal record (especially related convictions); committing the offence while on bail or probation; multiple victims; harm to the broader community; and a breach of public trust in fraud or abuse-of-position cases.
How aggravating factors affect sentence
Aggravating factors can move a sentence from a discharge to a conviction, from probation to jail, from a short term to a long one — and from a conditional sentence to a federal penitentiary. They are weighed against mitigating factors, with sentencing judges synthesizing both to arrive at a proportionate disposition under section 718.1.
How Mass Tsang manages aggravating factors
Reducing the impact of aggravating factors is part of sentencing strategy. Where facts can be reframed, contested, or contextualized, the lawyers at Mass Tsang LLP work to limit the aggravating profile of the case before the court. For more on Canadian sentencing, see our blog post on sentencing in Canadian criminal law.
Related glossary terms
