Sentencing Hearings
A sentencing hearing may be very formal, may be scheduled for a date in the future, and may include oral evidence, a pre-sentence report, a Gladue report or other such considerations.
A lot of time is usually required for preparing for sentence submissions; however, more often than not, submissions are done immediately after a finding of guilt or in docket court, a reality which often challenges the Aboriginal Justice Worker with limited resources and perhaps inadequate prep time.
Additional Facts for Sentence Purposes
The need to make findings of fact may not have ended with the finding of guilt as there may be additional facts needed to be ‘found’ for purposes of sentencing. These may include aggravating or mitigating factors with regard to sentencing.
The usual rules of evidence do not apply in submissions as to sentencing, still the onus rests with the party relying upon the alleged facts on a balance of probabilities unless the Crown is alleging an aggravating factor, in which case the onus is beyond a reasonable doubt. Of course there can be agreement on all alleged factors in sentencing and the Court is advised of such agreements.
Gladue factors come from many different sources, for example, you may have interviewed other parties not before the court, and while that information may be hearsay evidence and usually would not be admitted, it is often admitted in sentencing submissions. This is true also with victim impact statements and any statements made to the court by the ‘convicted’ party.
The usual rules of evidence do not apply in submissions as to sentencing, still the onus rests with the party relying upon the alleged facts on a balance of probabilities unless the Crown is alleging an aggravating factor, in which case the onus is beyond a reasonable doubt. Of course there can be agreement on all alleged factors in sentencing and the Court is advised of such agreements.
Gladue factors come from many different sources, for example, you may have interviewed other parties not before the court, and while that information may be hearsay evidence and usually would not be admitted, it is often admitted in sentencing submissions. This is true also with victim impact statements and any statements made to the court by the ‘convicted’ party.