Mitigating Factors
Mitigating factors are circumstances that reduce the seriousness of an offence or the moral blameworthiness of the offender for sentencing purposes — and accordingly reduce the sentence. Section 718.2(a) of the Criminal Code requires sentencing courts to consider aggravating and mitigating factors. Where statutes list specific aggravating factors, no equivalent list of mitigating factors exists — the recognized factors come from case law and sentencing practice.
Mass Tsang's criminal lawyers approach mitigation as a central element of sentencing strategy. For more on sentencing, see our blog post on sentencing in Canadian criminal law.
Common mitigating factors
Frequently recognized mitigating factors include: a clean prior criminal record (or a remote, minor record); early guilty plea (saving court resources, sparing complainants); genuine remorse; cooperation with authorities; voluntary restitution before sentencing; completion of counselling or treatment programs (anger management, substance abuse, partner abuse); youth or advanced age; mental health or addiction issues that contributed to the offence; family or community support; demonstrated rehabilitation since the offence; and positive contributions to the community.
Personal circumstances
Personal circumstances of the offender are often important mitigating considerations: stable employment; primary caregiving responsibilities (particularly for young children); educational attainment; military service; physical or mental health challenges; recent loss or trauma; experience of childhood abuse or trauma; and (for Indigenous offenders) the Gladue principles that require attention to systemic and background factors. Each is given weight depending on its connection to the offence and to the offender's prospects for rehabilitation.
Conduct since the offence
Conduct after the offence — particularly if the time between offence and sentencing has been substantial — can carry significant mitigating weight. Continued employment, ongoing treatment, no further criminal conduct, and demonstrable positive change all matter. Where the offender has built a new life since the offence, the sentencing court is asked to recognize that the person before the court today is different from the person who committed the offence.
How mitigating factors affect sentence
Mitigating factors can move a sentence from jail to a conditional sentence, from a conviction to a discharge, from a longer to a shorter custodial term, from federal to provincial time, and from a strict to a flexible probation. They are weighed against aggravating factors, with the court synthesizing both to arrive at a proportionate disposition under section 718.1.
Presenting mitigation
Effective mitigation requires preparation: character reference letters from employers, family, and community members; documentary evidence of treatment, employment, or community involvement; medical and psychological assessments where relevant; and clear submissions that connect the mitigating factors to the principles of sentencing. Strong mitigation is often the difference between a worst-case and a best-case sentencing outcome.
Related glossary terms
